Dáil Éireann Debate, Tuesday - 25 September 2018
415. Deputy Thomas P. Broughan asked the Minister for Transport, Tourism and Sport when he plans to introduce primary legislation to amend an error in the Road Traffic Act 2016 whereby drivers who fail a roadside impairment test conducted by An Garda Síochána cannot be required to provide a blood or urine sample due to an error in the legislation; and if he will make a statement on the matter. [38370/18]
View answerFirst of all, I would like to clarify what is evidently a misunderstanding of the situation. While there is an error in the legislation, it is not that suggested in the question.
Drivers who fail an impairment test will be arrested under section 4 or section 5 of the Road Traffic Act 2010. These sections deal respectively with intoxication offences related to driving and being in charge of a mechanically propelled vehicle.
The actual error in the legislation relates to the substitution of section 11 of the 2010 Act - the section which is the basis for impairment testing - in the Road Traffic Act 2016. Section 11 empowers Gardaí to conduct impairment tests and makes it an offence if a person, without reasonable excuse, fails to comply with a requirement to undergo an impairment test. The section empowers Gardaí to arrest without warrant a person guilty of failing to comply with such a request.
The difficulty arises because the 2016 revision of section 11 changed the internal numbering of subsections. The power of arrest for someone who failed to comply with a request to conduct an impairment test was originally in section 11(5) and is now in section 11(6). References elsewhere in the legislation to procedure following arrest under section 11(5) should now refer to procedure following arrest under section 11(6).
References in sections 13A and 13B to section 11(5) were corrected to refer to section 11(6) by section 2(a) and (b) of the Road Traffic (Amendment) Act 2018, which will be commenced on 26 October. These will allow Gardaí to conduct preliminary oral fluid tests for drugs and evidential blood tests for drugs where people have been arrested under section 11(6).
Subsequently, it has been noted that similar changes will be required to references in section 12 - obligation to provide blood, breath or urine specimens following arrest - and section 16 - power to detain people after arrest where they might pose a danger to themselves or others. These will be corrected in the forthcoming Road Traffic (Miscellaneous Provisions) Bill.
In the meantime, it is important to note that a person convicted under section 11 for failure to comply with a request to undergo and impairment test is liable to a fine up to a maximum of €5,000 and/or up to six months in prison. They will also be subject to a consequential disqualification of at least 1 year. It is not therefore the case that people in this position can evade the consequences of their actions.
