Road Traffic Bill 2011: Report Stage (Resumed) and Final Stage

Debate resumed on amendment No. 1:
In page 3, line 15, after "liquor," to insert "or".
—(Senator Feargal Quinn).

I do not wish to be disrespectful to Senator Quinn by not saying anything, but I have to take the advice of the Attorney General's office in this matter, the view of which runs contrary to that expressed by the Senator. Its advice is that this is the correct format to use.

Amendment, by leave, withdrawn.

I move amendment No. 2:

In page 3, line 17, after“2011,” to insert “or”.

I second the amendment.

Amendment put.
The Seanad divided: Tá, 18; Níl, 27.

  • Bradford, Paul.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Cannon, Ciaran.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Donohoe, Paschal.
  • Fitzgerald, Frances.
  • Hannigan, Dominic.
  • Healy Eames, Fidelma.
  • McFadden, Nicky.
  • O’Toole, Joe.
  • Phelan, John Paul.
  • Prendergast, Phil.
  • Quinn, Feargal.
  • Ryan, Brendan.
  • White, Alex.

Níl

  • Boyle, Dan.
  • Brady, Martin.
  • Butler, Larry.
  • Callely, Ivor.
  • Carroll, James.
  • Carty, John.
  • Cassidy, Donie.
  • Corrigan, Maria.
  • Daly, Mark.
  • Dearey, Mark.
  • Ellis, John.
  • Feeney, Geraldine.
  • Glynn, Camillus.
  • Hanafin, John.
  • Keaveney, Cecilia.
  • Leyden, Terry.
  • McDonald, Lisa.
  • Mooney, Paschal.
  • Ó Brolcháin, Niall.
  • Ó Domhnaill, Brian.
  • Ó Murchú, Labhrás.
  • O’Donovan, Denis.
  • O’Malley, Fiona.
  • O’Sullivan, Ned.
  • Ormonde, Ann.
  • Walsh, Jim.
  • White, Mary M.
Tellers: Tá, Senators Paschal Donohoe and Feargal Quinn; Níl, Senators Camillus Glynn and Niall Ó Brolcháin.
Amendment declared lost.

I wish to inform the House that, due to the failure to record Senator Ellis's "Níl" vote on the system, the result of the division as shown on the display board has been amended with the agreement of the Tellers for both sides. The amended result will appear in the Official Report. Amendments Nos. 3 and 4 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 3:

In page 4, to delete lines 28 to 32.

Amendment No. 3 proposes to delete section 2(6). I will go through to the subsection to explain my position and that of others on this matter. Section 2(6) states: "A member of the Garda Síochána shall not make a requirement under subsection (2) of a person to whom paragraph (a) of subsection (1) [Subsection (1)(a) states: “in the opinion of a member of the Garda Síochána ... has consumed intoxicating liquor”, and subsection (2) contains three methods by which that can be verified.] applies if, in the opinion of the member, such requirement would be prejudicial to the health of the person.” We are dealing with a situation where the garda is of the opinion that the driver has consumed alcohol but because of some medical issue, he or she cannot request that it be verified by means of a breathalyser test. What happens next? It seems there is nowhere to go. A garda forms an opinion that alcohol has been consumed but is he or she qualified to form an opinion about the health of the person and the implications of providing a breath sample? On that basis, there is a strong case to delete this subsection. If a person is drunk and a breathalyser is not available, there is no provision for any alternative verification method.

Amendment No. 4 provides for an alternative method of verification. It states: "Where a requirement is not made by virtue of subsection (6) or (7), the member may require". I could have made it stronger by stating "shall require". There must be some other method to verify whether a person is drunk.

I second the amendment.

I support what Senator Ryan said. He explained it very well.

What Senator Ryan requires is in the legislation. It is difficult when looking at such legislation to tie all the bits together. The amendment proposes to delete section 2(6) to make it mandatory that a person who, in the opinion of a member of the Garda Síochána, has consumed intoxicating liquor provides a preliminary breath specimen even where such a demand may be prejudicial to the person's health. There is a bigger danger there of a court letting a person off if he or she is able to prove it was prejudicial to his or her health and the garda forced him or her to take a breath test.

It is not true to say there is no alternative to the breathalyser test which the Senator wants to make mandatory in all circumstances even if a person is writhing around on the ground as a result of an epileptic fit, an asthma attack or something else. The garda can arrest the person and bring him or her to the Garda station. When he or she recovers, he or she can be breath tested or a urine sample can be taken. If the person is in obvious distress, the Garda can call an ambulance, bring the person to a hospital and ensure that medical personnel look after him or her and take a blood or urine sample.

The procedure is that a garda forms the opinion that, for medical reasons, a person cannot provide a preliminary breath specimen. I would be happier if that was not in the legislation. I concede that it places an onus on the garda to form an opinion of some kind. He or she will not automatically do that. The person will probably insinuate that he or she is not well or whatever. However, one cannot put a garda in a position where he or she ignores the possibility that a person is genuinely distressed, ill or whatever.

There is a safeguard in this section for the garda and, ultimately, for the State. If a garda disregards a person who is in distress, is ill or whatever or has no discretion in that regard, it would leave the State and the garda open to litigation if anything happened to the person subsequently.

There are also safeguards for the driver. Where a garda forms an opinion that the person is intoxicated, he or she can be arrested and a blood or urine sample can be obtained at the Garda station. It will be a matter for the courts to decide in any subsequent prosecution about non-compliance with the requirement to use the breathalyser. Once it is rebutted, a charge for refusal cannot proceed but the onus is on the driver to prove that.

The taking of a blood sample or the provision of a urine sample by a person at the roadside is not practicable and certainly is not desirable. People know my views on those who drink and drive, but a person's dignity needs to be upheld. It is not desirable to have legislation which requires a person to give a urine sample at the side of the road. The amendment to delete section 3(4) would make it mandatory for a person in hospital to either permit a designated doctor to take a specimen of blood or to provide the doctor with a specimen of his or her urine, irrespective of his or her medical condition and consequential ability to do so. The provisions in sections 2(6) and 3(4) are designed to protect not only the member of the Garda Síochána but also the person on whom the obligations and requirements are being imposed.

I hope I have clarified for the Senators that this is a reasonable and proportionate approach to take to do what we want to do. I commend it to the House.

Subsection (2) reads: "A member of the Garda Síochána shall, unless he or she is of opinion that the person should be arrested," which indicates another opinion that the person concerned should be arrested. Subsection (4) reads: "A member of the Garda Síochána may arrest without warrant a person who in the member's opinion is committing or has committed an offence under this section". I do not necessarily regard amendments Nos. 3 and 4 as the be-all and end-all, but I hope I have clarified the reason people are concerned that the Bill, as it stands, could give individuals the opportunity to get off the hook. Obviously, the Minister takes issue with amendment No. 4 on the basis that it suggests it might be done at the side of the road. Before the Bill is taken in the Dáil he might be in a position to take on board the issues we are trying to address. It might be possible to come up with an amendment similar to amendment No. 4 which would provide an alternative if, for some reason, the breathalyser cannot be used. If the Minister was willing to consider what might be possible in that vein, I would be happy enough.

I thank the Senator. While I am not promising anything, in the light of the contribution he and other Senators have made on the matter, I undertake to reconsider the matter before the Bill is taken in the other House to ascertain if it can be copper-fastened. We have had extensive discussions with the Garda on the matter during which we were specifically asked to give consideration to the need to safeguard the gardaí on the spot also. We will look at it closely to ascertain if there is anything further we can do.

Amendment, by leave, withdrawn.
Amendment No. 4 not moved.
Bill received for final consideration.
Question proposed: "That the Bill do now pass."

I thank the Members of all parties who contributed to the debate. I again acknowledge the co-operation and support of all parties for the Bill. I know I have not been able to accept the amendments tabled, but I recognise they were tabled in good faith and were designed to ensure the legislation was copper-fastened as much as possible. I thank Members and the staff of the Houses for their co-operation in taking all Stages of the Bill today which is greatly appreciated.

I thank the Minister for the interest he has shown in this matter and particularly for the answer he has just given to Senator Ryan that, while no promises are being made, he will reconsider the matter. I also ask him to consider the points made by Senator Donohoe and I on the other amendments tabled. The Minister has been very successful in recent years in reducing the number of road deaths and this is another step in that direction, for which I congratulate him. As I am not sure he will be in the House again, given that he has announced his intention not to run for election again, I take the opportunity to wish him every success in the future.

I agree with Senator Quinn. On the many pieces of transport legislation taken in the House in recent years I have always appreciated the constructive attitude adopted by the Minister to amendments tabled by Members on this side of the House. At different stages he has accepted amendments tabled by Senator Ryan and me or Independent Senators such as Senators Quinn and Norris. We have proposed a change to the legislation with a desire to improve it. I am saying this on the off-chance we will not meet again in such circumstances.

I thank the Minister for his response. Obviously, the Bill is due to be brought back to this House from the Dáil. I look forward to discussing the final version at that stage.

I wish the Minister well. I am sure he will be back before his tenure finishes. The Bill is part of a raft of road traffic legislation the Minister has pioneered which will stand as his legacy. It is a credit to all of the work both he and his officials have put in. I hope the Bill has a speedy passage through the Dáil.

Question put and agreed to.