We will resume on section 8.
Road Traffic Bill 2009: Committee Stage (Resumed)
Amendment No. 18 not moved.
I move amendment No. 19:
In page 13, subsection (1)(a)(i), line 8, after “liquor,” to insert “or”.
The Minister has just told members that the preposition "or" in the conditions regarding the obligation to provide preliminary breath specimen to a garda adds in another condition here. I believe the Minister has agreed to remove that preposition. It could have been interpreted that the driver was only obliged to provide a specimen when a garda was sure that the driver had consumed intoxicating liquor and had been involved in a fatal collision. Consequently, a garda should have the power to test automatically in the event of a collision, even if he or she is not 100% sure that alcohol has been consumed. There has been much discussion on this matter. In respect of the 2003 Act, an expert on drink driving cases, Mark de Blacam, SC, author of Drunk Driving & the Law, stated:
It is not clear that there are three distinct circumstances in which a breathalyser may be administered. I think a reasonable interpretation of the section is one whereby a person can be breathalysed where a Garda forms an opinion that someone has consumed an intoxicant and then either or has committed a road traffic offence or has been involved in a collision.
He was seeking to highlight a problem with the 2003 Act because of the use of the preposition "or". As the Minister has indicated he will remove it, I thank him.
Amendment agreed to.
I move amendment No. 20:
In page 13, subsection (1)(a), line 13, to delete “may” and substitute “shall”.
This amendment would replace "the member may require" with "the member shall require". In light of our arguments on amendment No. 17, we want a system of mandatory testing. Any discretion or ambiguity would be unacceptable, given the formula in subsection (b), as Deputy Ahern stated. My amendment is to ensure the testing system we are introducing is mandatory. Through another amendment of the same type, I would like to delete “may” and insert “shall”.
The effect of the Deputy's proposal means that, if someone parked illegally, a garda would need to breathalyse him or her, which would not be a good use of Garda time. I would prefer to have gardaí checking speed and so on. I cannot accept this amendment.
I have examined the section. Deputy Ahern made a point a few minutes ago. A little rejigging, such as moving subsection (b) to the top of the section and dividing the provisions on the commission of a minor offence, the involvement in a collision and the commission of an offence under the Road Traffic Acts, might allow us to word the section more tidily. In this way, once the person has consumed intoxicating liquor, the “shall” would apply and, for minor traffic offences, the “may” would apply. I commit to the Deputy that I will try to re-order this section. However, I do not want to mislead anyone, as I will not include a “shall” for someone who is caught parking illegally. I will try to meet the Deputy’s point.
As it stands, the phrase "the member shall require" would still be predicated on the member of the Garda Síochána believing someone had consumed intoxicating liquor or been involved in a collision and is committing an offence. The Minister has removed the "or", so it would surely work if the formula remained. I accept Deputy Ahern's point to the effect that turning it around would give us a tighter formula and prevent people wasting time at a minor tip, but the word "may" brings us into an area of discretion and we are seeking to remove ambiguity. If the Minister will consider the matter carefully before Report Stage, when we will propose this again, I will take his commitment on that.
I will consider re-ordering it.
Amendment, by leave, withdrawn.
I move amendment No. 21:
In page 13, subsection (1)(b), line 15, to delete “attends at the scene of” and substitute the following:
"is of opinion that a person has been in charge of a vehicle that has been involved in".
I have proposed the phrase "of the opinion" on legal advice. In light of case law in traffic offences, I wanted to cover a certain angle, namely, that the member taking the breath specimen had attended at the roadside. If this must be the case and the formula is left as it is, a difficulty could arise, in that we could be excluding the possibility of someone other than the person who takes the specimen being present at the site of the collision. This is my legal advice on the matter.
I take the Deputy's point, which is interesting, but my advice is that his wording would dilute the effect of the section. His comments have clarified what it is he is getting at. He is trying to address a situation in which someone who is in an accident is moved to a doctor's surgery or so on. The garda on the scene of the accident might be dealing with other issues there, so another garda would be sent to the surgery. I will examine the matter.
It arises from case law. We are trying to remove loopholes. I appreciate the Minister's comment and I will recheck my legal advice to clarify the point. Subsection (b) is important and I do not want to weaken it.
The Deputy has raised an interesting point. The incidence of people being brought across the Border after an accident was raised with me by PARC. We cannot prevent that. If someone is taken to a doctor's surgery or into a pub to calm his or her nerves, another garda might go there directly.
If the garda was not actually at the scene.
I will examine the matter in that context.
On that basis, I will withdraw my amendment.
Amendment, by leave, withdrawn.
I move amendment No. 22:
In page 13, subsection (1)(b), lines 16 to 20, to delete all words from and including “in” in line 16 down to and including “assistance” in line 20.
We have probably gone through this issue to a point, but we have not highlighted it. I respect the Minister's comments regarding Garda time, breathalysing and so on. We have invested considerable work and money in training young people in how to drive properly, but there are still many loo-las driving around who did not take those lessons. If people knew they would be tested regardless of the size of the tip, it would cut down on speeding, which is a significant killer. We might as well start as we intend to go on. There is no point in only going 99% of the way.
Our amendment replaces the words "in which injury appears or is claimed to have been caused to a person of such nature as to require medical assistance" with "attends at the scene of an event which has occurred in a public place and a vehicle was involved in the event". This is straightforward and simple. As with reducing the limit from 80 mg to 50 mg, it might be difficult to accept and cost a few pounds, but it will save lives. I ask the Minister to accept the amendment.
This comes back to the point made earlier, that it would not be a good use of Garda time. I respect what Deputy McEntee is trying to achieve but we must be practical. Gardaí will have to attend minor incidents——
Only if a garda is called and attends. Many tips will occur and gardaí will not be called.
That is covered. The measure Deputy McEntee is trying to achieve is already provided for where the garda is at the scene. Deputy Noel Ahern gave a good example. Even where people are in the wrong, they will try to get gardaí to attend minor incidents in the hope that the other person has taken a glass of wine at lunch. It would not be a good use of Garda time and I ask Deputy McEntee not to press the amendment. It would defeat the purpose we are here for.
Even though we had a vote, can the Minister reconsider the words, as he promised the Chairman?
We will do that anyway.
Amendment, by leave, withdrawn.
I move amendment No. 23:
In page 13, subsection (1)(iii), line 35, to delete "may" and substitute "shall".
That attempts to strengthen the legislation by replacing "may" with "shall" so there is no ambiguity or discretion and so that where the member does not have such an apparatus with him or her, there is a requirement to remain at that place in his or her presence or in the presence of another member of the Garda Síochána until such an apparatus becomes available to him or her, he shall then require the person to provide a specimen by exhaling into the apparatus.
We will examine this in the context of the review of the section.
Amendment, by leave, withdrawn.
Amendments Nos. 24, 25 and 26 are related and will be discussed together.
I move amendment No. 24:
In page 13, lines 38 to 41, to delete subsection (2) and substitute the following:
"(2) A member of the Garda Síochána shall not make a requirement of a person under subsection (1)(b) where, in the opinion of the member or on the advice of a doctor or other medical personnel attending the scene of the event, such requirement would be prejudicial to the health of the person as a consequence of the person’s involvement in the event.”.
These amendments have arisen following representations from a number of interest groups which have argued that a member of the Garda Síochána should not be placed in the position of solely having to form an opinion as to the ability of a person to provide a preliminary breath specimen following a road traffic collision. This amendment provides that, in addition to the member's opinion, a member of the Garda Síochána shall not require a person to provide a preliminary breath specimen when the advice of a doctor or other medical personnel attending the scene of the event is that such a requirement would be prejudicial to the health of a person as a consequence of the collision. This meets the requirement that there is some medical evidence.
Amendment agreed to.
Amendments Nos. 25 and 26 not moved.
Section 8, as amended, agreed to.
SECTION 9
I move amendment No. 27:
In page 15, subsection (9), line 27, to delete ", shall" and substitute "shall".
This is a minor textual amendment, moving a comma.
Amendment agreed to.
Section 9, as amended, agreed to.
SECTION 10
I move amendment No. 28:
In page 15, subsection (1), line 32, after "opinion" to insert "or suspicion".
This concerns preliminary impairment testing and the garda forming an opinion.
This amendment concerns the section we are examining.
We have already discussed this and dealt with it.
I wanted to insert "or suspicion" in order to strengthen the section and make it more clearly refer to mandatory testing. I can put this amendment because the other amendment was not agreed.
In amendment No. 30 we are deleting the requirement about the member forming the opinion.
Will amendment No. 30 subsume amendments Nos. 28 and 29?
Yes.
Amendment, by leave, withdrawn.
Amendment No. 29 not moved.
Amendments Nos. 30 and 31 are related and will be discussed together.
I move amendment No. 30:
In page 15, subsection (1), lines 39 and 40, to delete ", as to allow the member to form the opinion".
This deletes the wording Deputy Broughan proposes to amend.
It makes it much clearer.
Amendment agreed to.
Amendment No. 31 not moved.
I move amendment No. 32:
In page 15, subsection (3), lines 47 and 48, to delete "and section 11(1)(c)”.
These are minor textual amendments to the section, including the reference to preliminary impairment testing in Garda stations. Following further consideration with the key stakeholders, this reference is being removed. We will discuss the matter further in amendments Nos. 35, 37 and 38.
Amendment agreed to.
I move amendment No. 33:
In page 15, between lines 48 and 49, to insert the following subsection:
"(4) Where the outcome of testing under this section indicates that the person is incapable of having proper control of a vehicle, that outcome shall be evidence in a prosecution under section 4(1).”.
This concerns the preliminary impairment testing. I want to tie in preliminary testing so that it can be used in prosecutions. It should be quite clear that the outcome shall be evidence in the prosecution. I am trying to make it as clear as possible for when the issue comes to court.
The use of preliminary impairment testing in Garda stations is confined to the roads for a simple reason. We want to differentiate between tests for the purposes of forming the opinion and tests of an evidential status. The latter relate to the use of evidential breath testing instruments, the taking of blood, the provision of urine specimens and so on. The legislation relates to intoxicated driving, which is subject to so many court challenges. Applying the evidential status to results from the roadside preliminary impairment tests could undermine the overall evidential process. Preliminary impairment tests are merely to allow the Garda to form the opinion or to show there is something wrong.
Has the Minister not deleted that phrase?
The Minister has.
Not in this section.
Was that not the substance of amendment No. 30?
That was to allow the member to form the opinion. We deleted the repeating of it. The preliminary impairment test is a separate thing. Deputy Broughan's proposal is that it can be used in evidence. It is not tight enough. We would be back to where we were years ago, when many intoxicated driving fines were thrown out. The argument then was about the opinion. These are not scientific tests; they are merely to give one an idea about whether a person may have something in his or her bloodstream. If they are introduced as part of evidence in court a man might claim he stumbled because he had gout. It would be dangerous.
It is a very fuzzy area.
I agree. It is so fuzzy that one would not get away with using it in evidence. Impairment tests give one enough to be able to tell a judge who is asking why a man was nabbed by the side of the road that one was not satisfied the man could walk a straight line or tip his nose.
What is wrong with having that information available to the prosecution?
I am sure it could be available to the prosecution but I would not like to make it mandatory that it is part of the evidential chain. Usually a garda states in evidence that he or she had formed an opinion and that the person in question had been asked to perform an impairment test. Take a hypothetical case where a garda stops a man he sees wobbling around on the road, the garda asks him to step out of the car and do a preliminary impairment test of walking a straight line, but the man is all over the place and the garda prosecutes him. The man could state that he had terrible gout or sprained his ankle and that was why he was not steady on his feet. There is no basis for evidence. However, if he was taken to the Garda station for proper scientific tests to be carried out then one would have scientific evidence. The preliminary roadside breath test is not regarded as evidence per se; it is an indicator.
I had legal advice to that effect. I will re-examine the matter.
Amendment, by leave, withdrawn.
I move amendment No. 34:
In page 16, between lines 7 and 8, to insert the following subsection:
"(7) As soon as practicable after the passing of this Act the Minister shall make regulations applying section 9 to random testing of saliva to ascertain whether persons in charge of mechanically propelled vehicles are under the influence of illegal drugs.”.
We had much discussion on this at meetings of the Oireachtas Joint Committee on Transport and elsewhere. On Question Time, I brought to the Minister's attention the fact that some of the Australian state governments have saliva testing, which stands up in their common law justice systems. I wish to introduce measures to target drug drivers as well as drunk drivers. While the preliminary impairment measures are welcome, they do not go far enough to tackle the clearly significant upward trend in the number of drug drivers. In July 2009, the CSO survey showed an 81% increase in drug driving on the previous year. The number of specimens tested for the presence of a drug or drugs by the Medical Bureau of Road Safety were 569 in 2004, 747 in 2005, 879 in 2006, 1,555 in 2007 and 1,900 in 2008.
Drug driving is an increasingly serious problem. Due to the lack of a random roadside drug enforcement and testing regime these figures probably represent only a fraction of drug drivers. Hibernian Insurance, which is now Aviva, found in 2008 that more than 20% of drivers under the age of 35 had driven while under the influence of drugs. The drug testing programme in New South Wales in Australia enabled 757 drivers to be tested for drug use. The bulk of those drivers were prosecuted and 98% were convicted. For the past three years I have been telling the Minister that the state Governments in Tasmania and Queensland also introduced drug driving testing schemes.
The main focus of the Bill has been on drink driving and the huge problem that has caused. This section provides an opportunity to begin an urgently needed process of drug driving testing. The Minister has been constantly telling me, including on the most recent Question Time at which I asked about it, that there is as yet no feasible basis in Europe for the introduction of a preliminary scheme for the roadside testing for drugs and that the testing devices are still at prototype stages. Experience suggests that is not the case on a worldwide basis. There are many ways in which we could emulate Australia and drug driving testing is one of them. For this reason, I propose the introduction of saliva or other drug testing schemes.
Earlier, we spoke about how difficult it was to begin to put an end to the phenomenon of head shops and how complex the area is. There is a major problem. People involved in tragic collisions leading to major injuries and fatalities may have been under the influence of drugs and so far we have done little or nothing about it. Will the Minister begin legislating on this by accepting this amendment?
I support Deputy Broughan on this matter and I know the Minister has similar views. In towns and cities there is public transport but that is not there in rural Ireland. In my area of north Meath drugs are rampant. They come into villages and towns on Thursday nights and lads are driving cars under their influence. One of the first meetings I attended here was with a doctor from the Australian state of Victoria where testing had been introduced on a pilot basis. People tested were five times more likely to have drugs in their system than drink. Money is not plentiful but with matters such as driving tests coming under control perhaps the Minister will pick one county, and I would have no problem if that was County Meath, for a pilot scheme. It will have to happen. Perhaps we could co-operate with our colleagues in Northern Ireland and find funding in that way. I would like to see it started.
I agree with Deputy Broughan. The amendment is very sound in many ways. The Deputy does not suggest it would be introduced immediately. We would all like to think that it could, but as Deputy Broughan stated a large aspect of this Bill is about alcohol, which has caused terrible havoc in the past and nobody denies that. It is unfortunate that medical science or procedures have not moved on because in many cases now the problem is drugs and not drink. However, we seem to be concentrating on what was a problem in the past. With education, young people have responded and are far more responsible about not drinking when they drive. However, some of the same people engage in drug taking and are not as fussy.
Since Second Stage of the Bill was passed have there been international advances on any form of saliva or other tests we could do on a mandatory basis?
The view used to be that the Australian system would not stand up to our barristers. Will the legislation on head shops which has been introduced by the Minister for Justice, Equality and Law Reform do anything to define "intoxicant" and is it related to the substance one consumes, whether alcohol or another drug? The Deputy proposes that we include this provision in the Bill even if it is not ready within the next ten years but the problem is that we will not develop a saliva-based drug test. The suggestion has merit but it is questionable whether a provision can be put into a Bill without an adequate basis for it.
I understand the Medical Bureau of Road Safety stays abreast of international developments in this regard. Has any progress been made in the last year to develop a system? The procedures would have to be thorough because our court proceedings are too rigorous. The Deputy's suggestion is sound and perhaps when a system is found that can stand the rigours of our courts, a Minister will announce on the Order of Business some day that his or her officials will require five years to draft legislation. I am sure the Minister, Deputy Dempsey, does not have that problem with his Department but others might.
It is no secret that some jurisdictions have introduced a random testing regime for drug driving based on saliva specimens. However, these tests have limited application. We do not work on our own on these matters but a suitable roadside drug testing device has not yet been developed in Europe. Several devices are at prototype stage and I assure members that the Medical Bureau of Road Safety is keeping abreast of developments. As soon as it is satisfied that a suitable device has become available, we will introduce it. As Deputy Noel Ahern noted, such a device may not be saliva-based but once it has been approved by the bureau, the necessary legislation will be introduced.
This Bill provides for preliminary impairment testing involving non-technological methods to allow a garda to make a preliminary assessment about the possible presence of drugs, at which point a suspect can be taken to a Garda station for blood or urine samples and, if necessary, prosecuted. I agree with Deputies that there has been an increase in the number of people driving with non-alcohol based drugs.
The committee might be interested in hearing from Professor Cusack on the technical aspects of testing. The reason the Australian system does not work in Ireland is related to climactic conditions. These devices require a lengthy testing period because one must exclude, for example, certain substances which are found in every mouth and which can distort results. It is a very technical issue and while I would love to be able to include a section in this Bill to allow for roadside testing, it is not possible to do so. Deputy Broughan's amendment makes mention of saliva but we may develop an entirely different test. I do not know how soon we will make the breakthrough but considerable efforts are being made at European level to find a solution because there is a serious commitment to road safety.
I tabled amendment No. 2 to broaden the definition of impairment. Perhaps the Minister will accept that amendment on reflection. As we have seen from the recent controversy, there are many different types of drugs but the New South Wales system mainly tests for cannabis and amphetamines. This covers a wide range of people who may drug drive.
I accept the importance of dealing with alcohol but other drugs present increasing problems which I am sure will be drawn to our attention in the future. I hope this Bill meets its objectives but I wanted to send a signal to those who push illegal drugs. One of the worst aspects of the drug business is drug driving because of the collisions and serious injuries it can cause. I do not know if the Minister can make regulations under this section but we should pay attention to the issue. I will withdraw my amendment for the time being.
Have complaints been made to the Equality Authority about impairment testing, which I welcome? It is unfortunate that the legislation is so focused on alcohol while drugs, which some people view as the big problem, are getting away scot free. I am only slightly jesting when I say that one of these days somebody will bring a complaint to the Equality Authority on the basis that he or she is being discriminated against or subject to draconian laws in respect of the substance he or she is abusing when others are getting away almost scot free. I hope impairment testing helps to get the message across but we all long for the day when a proper mandatory test is available for drugs.
Amendment, by leave, withdrawn.
Section 10, as amended, agreed to.
Deputy Noel Ahern took the Chair.
SECTION 11
Amendments Nos. 35 to 38, inclusive, are related and there is an alternative to amendment No. 35.
I move amendment No. 35:
In page 16, lines 11 to 42, to delete subsection (1) and substitute the following:
"11.—(1) Where a person is arrested under section 4(8), 5(10), 6(4), 8(4), 9(7) or 10(5) of this Act or section 52(3), 53(5), 106(3A) or 112(6) of the Principal Act, a member of the Garda Síochána may, at a Garda Síochána station, do any or all of the following—
(a) require the person to provide, by exhaling into an apparatus for determining the concentration of alcohol in the breath, 2 specimens of his or her breath and may indicate the manner in which he or she is to comply with the requirement,
(b) require the person, subject to subsection (2), at the option of the person,
either—
(i) to permit a designated doctor or designated nurse to take from the person a specimen of his or her blood, or
(ii) to provide for the designated doctor or designated nurse a specimen of his or her urine.
(2) Where a person makes an option under subsection (1)(b) in relation to a requirement made of him or her under that subparagraph and if—
(a) a designated doctor or designated nurse states in writing that he or she is unwilling, on medical grounds, as the case may be, to take from, or be provided by, the person with the specimen to which the requirement, in respect of which the option was made, related, or
(b) the person, in the opinion stated in writing of a designated doctor or designated nurse, is unable or unlikely within the period of time referred to in section 4 or 5 to comply with the requirement,
then a member of the Garda Síochána who made the requirement may make a requirement of the person under that subparagraph in relation to the specimen other than that to which the option made by the person in respect of the first-mentioned requirement related.".
This amendment restates the earlier provisions but in a much clearer format and removes the use of the preliminary impairment tests in Garda stations, which are now confined to the roadside so as to differentiate between tests for the purpose of forming an opinion and tests of an evidential status. The latter relate to the use of evidential breath-testing instruments, the taking of blood and the provision of urine specimens. The use of the PIT in Garda stations is being replaced by the proposed new section in my amendment No. 51 to provide for the medical examination of drivers arrested under sections 11 and 13 of the Bill at Garda stations.
There is merit in the way the Minister has formulated section 35. In my amendment No. 36, I wanted to remove the words "at the option of the person" because they were superfluous to any measure requiring a doctor or nurse to provide a sample. My initial instinct was that a person should have to provide a sample to Garda-approved medical personnel and I think the Minister has moved towards that. I would like to have a look at this again as we only received the full details of the Minister's amendment a few days ago but, to some extent, it meets the concerns in my amendment.
Amendment agreed to.
Amendment No. 36 not moved.
I move amendment No. 37:
In page 17, lines 6 to 8, to delete subsection (4).
Amendment agreed to.
I move amendment No. 38:
In page 17, lines 19 to 25, to delete subsection (8).
Amendment agreed to.
Section 11, as amended, agreed to.
Section 12 agreed to.
SECTION 13
Amendments Nos. 39 to 43, inclusive, are related and will be discussed together.
I move amendment No. 39:
In page 18, lines 9 to 29, to delete subsection (1) and substitute the following:
"13.—(1) Where, in a public place, an event occurs in relation to a mechanically propelled vehicle in consequence of which a person is injured, or claims or appears to have been injured, and is admitted to, or attends at, a hospital and a member of the Garda Síochána is of opinion that, at the time of the event the person was driving or attempting to drive, or in charge of with intent to drive or attempt to drive (but not driving or attempting to drive), the mechanically propelled vehicle, then such member shall, in the hospital, if such a requirement, having consulted with a doctor treating the person, would not be prejudicial to the health of the person as a consequence of the person's involvement in the event, require the person—
(a) either—
(i) to permit a designated doctor or designated nurse to take from the person a specimen of his or her blood, or
(ii) at the option of the person, to provide for the designated doctor or designated nurse a specimen of his or her urine,
or
(b) to undergo a medical examination of the person carried out by a designated doctor or designated nurse for the purpose of obtaining evidence that the person was at the time of the event under the influence of an intoxicant as to be incapable of being in control of a mechanically propelled vehicle.
(2) Where a person makes an option under subsection (1)(b) in relation to a requirement made of him or her under that subparagraph and if—
(a) a designated doctor or designated nurse states in writing that he or she is unwilling, on medical grounds, as the case may be, to take from, or be provided by, the person with the specimen to which the requirement, in respect of which the option was made, related, or
(b) the person, in the opinion stated in writing of a designated doctor or designated nurse, is unable or unlikely within the period of time referred to in section 4 or 5 to comply with the requirement,
then a member of the Garda Síochána who made the requirement may make a requirement of the person under that subparagraph in relation to the specimen other than that to which the option made by the person in respect of the first-mentioned requirement related.".
This amendment arose following representations from various interest groups, including PARC, and in line with amendments tabled by the Opposition. The amendment provides that where a person has been involved in a road traffic collision and is admitted to or attends a hospital and a member of the Garda Síochána is of the opinion that, at the time of the collision, the person was driving, attempting to drive or in charge of a mechanically-propelled vehicle, the member must consult with the doctor treating the person. Following that consultation, if it would not be prejudicial to the health of the person as a consequence of the person's involvement in the collision, he must require the person either to permit a designated doctor or nurse to take from the person a specimen of his or her blood or, at the option of the person, to provide for the designated doctor a specimen of his or her urine. The amendment also provides for the entry into any hospital where the person is by a member of the Garda Síochána, without warrant, for the purpose of making a requirement under the section, and for a doctor or nurse to be designated for the purpose of taking a blood specimen or being provided with a urine specimen.
In the context of amendments Nos. 40 and 41, I refer the Deputy to my amendments Nos. 39, 42 and 43 which provide that, where a person has been admitted to a hospital following a road traffic collision, a member of the Garda Síochána must consult with the doctor treating the person and, having so consulted, if not prejudicial to the health of the person, require the person to provide a urine specimen or have a blood specimen taken. The proposed deletion in the Deputy's amendment No. 41 has also been dealt with in my amendments. On the basis that we have tried to meet the Deputy's requirements, and those of others who have made representations, I ask him to withdraw his amendments.
I accept that the Minister has moved to cover my concerns. The original wording was far too weak and gave a loophole to drivers who were over the limit but wanted to avoid providing a blood or urine sample. The use of the word "and" between paragraphs (a) and (b) was also completely unacceptable because it could mean a garda had to be firmly of the opinion that alcohol had been consumed. There is no reason to require a garda to be of the opinion that the person who had crashed had consumed an intoxicant. The crash alone should be enough to warrant a test. The Minister seems to have covered most of the issues raised by PARC and others and to have tightened the Bill accordingly.
Amendment agreed to.
Amendments Nos. 40 and 41 not moved.
I move amendment No. 42:
In page 18, subsection (3), line 40, to delete "is" and substitute "is not".
Amendment agreed to.
I move amendment No. 43:
In page 18, between lines 45 and 46, to insert the following subsections:
"(4) A member of the Garda Síochána may, for the purpose of making a requirement of a person under subsection (1)*, enter without warrant any hospital where the person is or where the member, with reasonable cause, suspects him or her to be.
(5) A designated doctor or designated nurse may, for the purpose of taking from a person a specimen of his or her blood or being provided by a person with a specimen or his or her urine under subsection (1)* enter any hospital where the person is or where the doctor or nurse is informed by a member of the Garda Síochána that the person is.”.
Amendment agreed to.
Section 13, as amended, agreed to.
Sections 14 and 15 agreed to.
SECTION 16
I move amendment No. 44:
In page 20, subsection (4), line 47, to delete "section 4 or 5” and substitute “section 4, 5 or 6”.
This is a minor textual amendment to the section.
Amendment agreed to.
Section 16, as amended, agreed to.
SECTION 17
Amendments Nos. 45 and 46 are related and will be discussed together.
I move amendment No. 45:
In page 21, subsection (1), lines 7 and 8, to delete all words from and including "or" in line 7 down to and including "11(1)(c)” in line 8.
These amendments present minor textual amendments to the section, including the deletion of the reference to the use of preliminary impairment testing in Garda stations which, following further consultation with key stakeholders, is now being removed as I outlined in the discussion of amendments Nos. 35, 37 and 38.
Amendment agreed to.
I move amendment No. 46:
In page 21, subsection (4), line 52, to delete "either" and substitute "any".
By putting in the word "any" the Minister has covered everything.
Amendment agreed to.
Section 17, as amended, agreed to.
SECTION 18
Amendments Nos. 47 and 48 are related.
I move amendment No. 47:
In page 22, subsection (1), line 6, to delete "or carrying out a procedure under that subsection or both" and substitute the following:
", 13(1) or carrying out a procedure under those subsections or both”.
These are minor technical amendments.
Amendment agreed to.
I move amendment No. 48:
In page 22, subsection (1), line 12, after "11(1)” to insert “or 13(1), as the case may be”.
Amendment agreed to.
Section 18, as amended, agreed to.
Section 19 agreed to.
SECTION 20
Amendments Nos. 49 and 130 are related and will be discussed together.
I move amendment No. 49:
In page 23, subsection (1), lines 31 and 32, to delete "a contribution towards the costs and expenses incurred by" and substitute the following:
"a sum approximating to the costs and expenses incurred by the prosecution and by".
This amendment comes from a desire to emphasise to offenders the general costs to the community, as well as the legal costs, of disregarding the drink driving laws. I did not see why there should be a requirement to pay only a contribution towards those costs rather than the actual amount of the costs. The offender should be liable for the costs of the prosecution and of the medical bureau specifically. The amendment is designed to make the sanction for those who disregard the new Road Traffic Act more onerous.
My advice is against this but I am inclined to agree with the Deputy. I will come back on Report Stage. They should at least be made to pay for it.
Amendment No. 130 in section 63 has the same impact where "a certificate signed on behalf of the prosecution as to the amount of the costs and expenses involved shall be prima facie evidence of the amount of those costs and expenses.” It is an attempt to put the onus on the offenders.
I will have another look at the matter.
Amendment, by leave, withdrawn.
Section 20 agreed to.
SECTION 21
I move amendment No. 50:
In page 23, subsection (2), line 51, to delete "blood" and substitute "blood,".
This is a minor textual amendment to the section to include a comma.
Amendment agreed to.
Section 21, as amended, agreed to.
Section 22 agreed to.
NEW SECTIONS
I move amendment No. 51:
In page 24, before section 23, but in Chapter 5, to insert the following new
section:
"CHAPTER 6
Medical examination at Garda Síochána station or hospital
23.—(1) Where a person is arrested under a provision referred to in section 13(1) (inserted by section 2 of the Road Transport Act 2006) of the Act of 1994 or section 11(1) of this Part or is admitted to hospital in the circumstances referred to in section 15(1) of the Act of 1994 or section 13(1) of this Part, a member of the Garda Síochána, at a Garda Síochána station, may require the person to undergo a medical examination of the person carried out by a designated doctor or designated nurse for the purpose of obtaining evidence that the person was at the time of being arrested or the event, as the case may be, he or she was under the influence of an intoxicant as to be incapable of having proper control of a vehicle.
(2) A person who refuses or fails to comply with a requirement under subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 6 months or to both.
(3) Where a designated doctor or designated nurse carries out medical examination of a person for the purposes of subsection (1), he or she shall make a written statement of the results of the examination.”.
This amendment provides that a member of the Garda Síochána may require that a person arrested under sections 11 or 13 of the Bill undergo the medical examination by a designated doctor or nurse at a Garda station or a person admitted to a hospital as a result of a road traffic collision as per section 15(1) of the Act of 1994 or section 13(1) of the Bill for the purpose of obtaining evidence that the person was under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle at the time of arrest or collision. The amendment also provides for the offence of failure or refusal to comply with the requirements under the section, with a penalty of €5,000, six months imprisonment on summary conviction or both. It also provides for the making of a written statement of the results of the examination by the designated doctor or nurse.
There is a specific reference to the Act of 1994. The Minister referred to the 2006 Act so how is that different to what we already discussed?
I referred to section 15(1) of the Act of 1994. It concerns a change to the Title of the earlier Act. It is the Road Traffic and Transport Act 2006.
Amendment agreed to.
I move amendment No. 52:
In page 24, before section 23, but in Chapter 5, to insert the following new section:
24.—(1) In any proceedings against a person for an offence under section 23(2), a written statement by a member of the Garda Síochána in respect of the making of a requirement under section 23(1) or carrying out an examination under that
subsection or both shall, if the conditions mentioned in subsection (2) are satisfied, until the contrary is shown, be sufficient evidence of the facts stated in it, without proof of any signature on it or that the signatory was the proper person to sign it,
and shall, until the contrary is shown, be sufficient evidence of compliance by the member with the requirements imposed on him or her under subsection (1).
(2) The conditions referred to in subsection (1) are—
(a) the statement purports to be signed by the member of the Garda Síochána who made it,
(b) the statement contains a declaration by that member of the Garda Síochána to the effect that it is true to the best of his or her knowledge and belief and that he or she made the statement, and
(c) a copy of the statement is served on the accused.
(3) A copy of a statement required by this section to be served on a person may, be served—
(a) by delivering it to him or her,
(b) by addressing it to him or her and leaving it at his or her usual or last known residence or place of business, or
(c) by sending it by registered post to him or her at his or her usual or last known residence or place of business.
(4) A duly completed statement purporting to have been made under section 23(3) shall, until the contrary is shown, be sufficient evidence under the Road Traffic Acts 1961 to 2010 of the facts stated in it, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the designated doctor or designated nurse concerned with the requirements imposed on him or her under section 23(1).
(5) In a prosecution for an offence under section 23(2)* it shall be presumed until the contrary is shown that the person—
(a) who carried out a medical examination of a person under section 23(1),
or
(b) for whom, following a requirement under section 23(1) there was a refusal or failure to undergo a medical examination, is a designated doctor or designated nurse.
(6) Section 1(1) of the Probation of Offenders Act 1907 does not apply to an offence under this section.".
This amendment provides for the use of a written statement by a member of the Garda Síochána as evidence in proceedings for offences under section 23(2) following a requirement under section 23(1). Subsection (2) provides that a copy of the statement be served on persons in such proceedings with subsection (3) providing how the copy may be served. The amendment also provides that section 1 of the Probation of Offenders Act 1907 does not apply to an offence under this section.
This is a welcome provision.
Amendment agreed to.
SECTION 23
Amendments Nos. 53 and 58 are related and may be discussed together by agreement.
I move amendment No. 53:
In page 25, subsection (2)(e), line 3, after “breath” to insert the following:
", provided that such apparatus does not operate to allow a standard deduction from the recorded reading of the concentration of alcohol in the breath".
This amendment concerns the functions of the medical bureau. The Minister will have received representations about this, where there was a design to challenge the practice of having a standard deduction of approximately 17.5% from the recorded breath alcohol reading. Like so much else in the Bill, this was brought to my attention by the tremendous committee at PARC. It also raised the issue of the intoxilyser machines in use in Ireland, maintaining that the machines in operation have a 17.5% deduction built into the readings, which means the evidential reading used in court could be 20% or 25% lower than the blood alcohol content level at the time of testing. The amendment is designed to show the amendment should not be allowed or permitted in whatever newly calibrated machines are used.
The Minister and I spoke last summer about the calibration of machines and the work to be done in that regard. We could strengthen the Bill by adding this phrase stipulating that no such machine will be allowed to operate a standard deduction from the recorded reading of the concentration of alcohol in the breath. This does not appear to happen anywhere else so why should it happen here?
Deputy Frank Fahey resumed the Chair.
It happens in other places. As the Deputy accepts this is a very technical area but there is very solid legal and scientific grounds for the 17.5% deduction referred to by the Deputy. The Deputy should consider a number of Superior Court cases, such as the Director of Public Prosecutions v. Syron, the Director of Public Prosecutions v. Curry and McGonnell v. the Attorney General and the Director of Public Prosecutions.
Under section 17 of the Road Traffic Act 1994 it is stated that the specimen with the lower concentration of alcohol shall be taken into account for the purposes of section 49(4) and 50(4) of the principal Act. It does not state "it shall be the result" and instead it states "it shall take into account", which implies that there are other factors, including scientific variables.
The bureau has always biased the reporting of blood or urine results in the driver's favour by looking only at the minus end of the range. In other words, a driver's alcohol result could not be less than the result issued on the bureau certificate. The amount subtracted will differ according to the scientific analytic method.
In the case of blood and urine analysis in the laboratory, 6% is subtracted from the mean of the results; the smaller subtraction in the case of blood and urine analysis reflects the tighter statistical control of the analytical method in the laboratory. It is best scientific practice that all analytic results are reported with a plus or minus tolerance and the International Standards Organisation definition of the result after the plus or minus reflects that practice.
Before determining the amount of subtraction needed for the evidential breath testing method, the bureau scientists consulted with the legal metrology service and the national metrology laboratory in Dublin, which advised on the best approach to the calculations. Calculations are based on maximum permissible tolerances of range and standard deviation of the instrument types; standard deviation is a statistical parameter used to represent precision of a method. The uncertainty measurement of the check gas or simulator solution used to calibrate the instrument is also taken into account. Using a formula to combine these factors, the overall uncertainty budget gave results of approximately 17.5%. On these scientific grounds, the bureau decided that 17.5% would be an appropriate deduction for the instruments.
We are not the only country to do this and other European countries have made similar allowances. In the UK, where there is only one limit at 35 milligrams per 100 millilitres, the driver is not prosecuted until the 40 milligrams per 100 millilitres level is reached. In Ireland the bureau could not use this approach as the law has three different penalty levels. In the Netherlands the allowances are in the order of 20% of the 35 milligrams, 18.2% at the 44 milligrams and 16.6% at 66 milligrams. In Sweden the allowance is 20% at 35 milligrams, 15.9% at 44 milligrams and 10.6% at 66 milligrams.
The reason for making a deduction from raw analytical results for legal purposes is to ensure a person with a breath alcohol concentration below a limit is not prosecuted for being over that limit owing to any analytical variation in the analysis. The approach adopted by the Medical Bureau of Road Safety has been tried and tested in our own courts, including the machines and everything else. I saw the judgment, which was quite thick. It stands up. For that reason, I ask the Deputy not to press this amendment.
I thank the Minister for reading that into the record. It would be helpful for us in the Opposition, and others who are interested, if we had a thorough briefing from the Department. The Minister has put much of it on the record, but if he could provide the briefing to us before Report Stage, I would appreciate it. On this basis, I will withdraw amendment No. 53.
Amendment, by leave, withdrawn.
Amendments Nos. 54 and 55 are related and may be discussed together by agreement.
I move amendment No. 54:
In page 25, subsection (4)(b), lines 21 and 22, to delete all words from and including “of” in line 21 down to and including “out” in line 22 and substitute “referred to in subsection (3)”.
These amendments provide for clarification of the kind of research on which the MBRS may give assistance. The MBRS was included under the Freedom of Information Acts, but it was not the intention that those functions of the bureau which do not relate to its general administration would be included. Therefore, this amendment, while maintaining the status quo on the disclosure of records concerning the general administration of the bureau, clarifies the position of the bureau under the Freedom of Information Act, reflecting the outcome of a number of High Court and Supreme Court decisions on the disclosure of certain documents in cases of intoxicated driving.
The intention of this amendment is to prevent a parallel system of disclosure with respect to certain functions of the bureau under the Road Traffic Acts, particularly in criminal proceedings. Similar exemptions from the Freedom of Information Act are provided for the Office of the Attorney General, the Office of the Director of Public Prosecutions and the Health and Safety Authority.
There was much concern about this amendment because it was felt to some extent that the Minister was pulling the MBRS out of the freedom of information provisions. Is he saying that the obtaining of information, which is what the freedom of information provisions are for, on how the MBRS is performing in its duties and administration will be achievable by people who are interested in road safety, but individual records will not be obtainable by FOI because they could be sub judice at some stage? If we need to obtain statistics, such as those that form the basis of the report to which I referred earlier, would that be inhibited by what the Minister is doing? Is he restricting the FOI system drastically in such a way that we will be unable to obtain the key information we need to achieve better road safety?
No. What we are trying to ensure is that people do not use the Freedom of Information Act to thwart prosecutions. With regard to the general administration of the bureau there is no problem at all. As the Deputy knows——
What about general statistics on casualties?
I must say that this is more than just a job to Professor Cusack. I have met him and he is totally committed, as the Deputy knows.
Absolutely.
He would certainly not favour anything that would restrict information that might be helpful to road safety efforts. I assure the Deputy on that point.
Amendment agreed to.
I move amendment No. 55:
In page 25, between lines 22 and 23, to insert the following subsection:
"(5) The Freedom of Information Act 1997 is amended in section 46(1) (as amended by section 29 of the Freedom of Information (Amendment) Act 2003) by inserting after paragraph (ba) (inserted by section 112 of the Company Law Enforcement Act 2001) the following:
"(bb) a record held or created by the Medical Bureau of Road Safety under the Road Traffic Acts 1961 to 2010 (other than a record concerning the general administration of the Medical Bureau of Road Safety),”.”.
Amendment No. 55 will be in the Bill but I will consider the issue again on Report Stage. I accept the bona fides of the Minister and the MBRS. I am sure it will turn out as the Minister is saying. The key point about FOI is that the public must be able to access information on issues of maladministration and, in many cases, their own records. However, the MBRS is a specialist agency. I will accept the amendment for now.
Amendment agreed to.
Section 23, as amended, agreed to.
Progress reported; Committee to sit again.