I do not agree; fundamentally, I think he is a decent man, and I think if he came upon such a spectacle and found a woman in great distress, he would ask himself: "Does this situation correspond with what we had in mind when in Article 40 of the Constitution we laid down in paragraph 3: "The State guarantees in its laws"—that is what we are doing today, making laws—"to respect and, as far as practicable by its laws to defend and vindicate the personal rights of the citizen."
I want to put this question to the Chair: has a woman the right to drive a car in this country without being dragged off to a police station by a member of the Garda Síochána old enough to be her grandson not because he believes she is drunk but because he believes that the formula has been breached, and asked to submit in the surroundings of a police station to the drawing of her blood or else providing for the custody of the Bureau which is to be established under the Bill, a sample of her urine? I want to suggest to the House that not only is that a revolting proposition in itself but I believe that if the Constitution is invoked, the Supreme Court would hold that, in passing such legislation, we have failed to observe the obligation put upon us to guarantee in our laws to respect, and, as far as practicable, by our laws to defend and vindicate the personal rights of the citizen.
Subsection (2) of Part 3 of that Article on Personal Rights says:
The State shall, in particular, by its laws, protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.
I believe this proposal is unconstitutional. But leaving out the constitutional issue, I am addressing myself to the ordinary decent reactions of the average Deputy. What I am afraid of is that in considering this proposal, Deputies are thinking of irresponsible brats driving sports cars who would not give a damn if they were stripped naked in the station, and to whom it would be no psychological shock to undergo any kind of physical jostling of that character. But we are not legislating exclusively for such persons; we are legislating for everybody. I ask the House: is it a reasonable suggestion that a procedure of this kind should be imposed on a man of standing, or a Deputy, for instance, under sanction of six months' imprisonment if he does not submit to it, if that gives Deputies even reason to pause, and I think it should? Then there is the case of a respectable woman who is exposed to this test and I say it is unthinkable for a body to provide that, under penalty of six months' imprisonment, a woman should be asked to submit to a test of this kind.
There is a third aspect of this situation to which I think the House ought to direct its mind. I have been dealing up to now with people who are going about their lawful duties who are stopped by a garda on suspicion that they have violated the blood sample formula provided in the Bill. Now I come to the case of a person who has been involved in an accident and such a person, the gardaí may come to the conclusion, smells of drink. Remember, we are legislating for the imposition of a penalty. I was driving during the Waterford by-election campaign and not every Deputy will remember the Saturday night before the poll was the coldest day which came out of the heavens. After coming off the platform, somebody gave me a Baby Power, which is a thing I do not ordinarily drink and said: "Mr. Dillon, you ought to take that on your way home or you will die of the cold". I was very cold but I did not drink the whiskey. My apprehension is that a man in a similar circumstance to mine might strike his head against the car and the whiskey bottle be broken and spilled, and in fact I might be seriously concussed without any drink of whiskey.
Now even an experienced, sensible and prudent member of the Garda Síochána might legitimately, in that context of the section of this Bill, bring me to the police station and go through all this formula and I might —being concussed and shocked—give him a very sharp answer, rendering myself liable to six months in jail. But what is worse, gradually subsiding into a coma, whereupon an ambulance would be sent for, which might arrive within the next half-hour or so, I would arrive in hospital, only to be told later that I was suffering from sub-arachnoid bleeding, from a fracture of the base of my skull, or something like that, and there was now a doubtful question as to whether or not I would recover at all or, if I did recover, that I would suffer permanent brain injury.
Now, you think that a desirable situation to create. I want to put it to the House that the place to take a person who has been involved in an accident, and who may have all the exterior signs of having partaken of alcohol, is to a hospital and there in the hospital—having had him examined in the casualty department— let the Garda then proceed to lay any charges, or go through any formula they want, but the first thing is to see that the man is not dying, because certainly it is not our intention to sentence irresponsible motor drivers to death. Now I know there are some Deputies who will say: "Deputy Dillon is a foolish man; he will be portrayed as defending drunken drivers". I do not give a fiddle-de-dee what I am portrayed as; I am here to do my job. My job is to stop drunken driving by legislation which will commend the assent of all reasonable people in this country. I do not think this Bill will. I think, if this Bill passes in its present form, the President ought to send it to the Supreme Court for examination.
I am quite prepared to recognise the difficulties and problems of the Minister for Local Government and I would be quite prepared to go as far as I thought it humanly reasonable to go. I think it is ample to say we have put upon everybody the obligation to blow in the bag and mind you, I do not minimise it! I think it is a grave offence to the legitimate personal dignity of the average person. But I think it is a contribution most people would be prepared to make in the common effort to suppress drunken driving. But I would be prepared to say this: on a person being charged, he or she should be informed: "You are entitled, ma'am, to ask for a doctor and the police doctor will attend or your own if you want him, but if you ask for one, the police doctor will attend right away. We cannot answer for what your doctor will do. If you like, we can have a sample of your blood taken and other tests made. If you want to do that you are welcome." I am prepared to go further and provide that in the event of a person being informed of that right and refusing to accept it, the Guards will be entitled to tender that in evidence in court. It will be up to the defendant to say: "I refused that in the Garda station because it was something I could not face", and the justice will determine whether the man or woman is speaking in good faith when he or she say that, or determine whether he or she is trying to suppress the true position in which he or she was.
We are not forbidding the Guards to go through the existing procedure. If they arrest a person for drunken driving of a car, they can send for the police doctor and ask him to apply the ordinary tests—walking a straight line, the defendant expressing himself in tortuous sentences—and they can produce the doctor who may say that by all ordinary tests he thought the man was drunk. I am prepared to agree to that. Over and above that, the Guards will be entitled to say: "We offered him the right to submit to the blood test and the urine test and he refused; we told him he would not be confined to the police doctor, that he could get his own doctor, and he refused that", and let all these facts be brought before the court where the justice can evaluate them and determine whether the person was fit to drive a car or whether the person turned down the tests in an endeavour to suppress the fact that he was unable to drive a car. To make it a statutory offence punishable by six months in prison for failure to submit to the two tests is, in my opinion, a horror.
We are drifting into these situations not in one leap of indifference to human rights, but inch by inch we eat into human rights until eventually we find ourselves quoting past precedents to justify our actions. That is what a Constitution is for. I have never had any great esteem for Bunreacht na hÉireann which I think is mostly cod, most of the Articles in it being largely suspended, nothing there except Article 40 which is enforceable by the courts. Article 40 was put down as representing the general consensus of opinion on the fundamental rights of the people of our country, and formidable as is the danger, and I do not deny it, of drunken driving, and shocking as are the consciences of people who drive cars under the influence of drink. I still think there are limits beyond which this House should not go in legislation of this kind for the purpose of suppressing this evil.
Again, I press very strongly on the Minister, to try out what I am proposing to him now. If that does not work, let us think of the problem again and see whether these precautions are deflecting our purpose to prevent persons under the influence of drink from driving according to the formula set out in this Bill. Deep down in our hearts we know there is only one sure guarantee against the drunken driver, that is, to teach every man and woman: "If you drive do not drink; if you drink do not drive". That is the real guarantee and it is not an intolerable argument.
I do not believe in pressing young people too far in regard to certain standards of conduct but one standard I would insist on for four or five young fellows going out in a car for a night is that one of them will go on the wagon, on the understanding that on the occasion of the next four hooleys, he will not have to go on the wagon. I can best illustrate this by experiences which we had ourselves. Thanks be to God, I was only once in a car that killed a person. The night I was called to the Irish Bar we dined in the Kings Inns. We dined well, as we intended to, and we proposed to drive to Harold's Cross to the dogs—four of us who had been called to the Bar—and none of us was on the wagon. However, I had taken the prudent precaution of saying: "Now boys, the car stays in Henrietta Street." We hired a car with a responsible driver and the four of us piled in and all my life long I shall thank God for that decision. As we were driving along the canal bank that summer evening with little children playing, a little child, about five years of age, darted out from behind a lorry. The car struck the child and by the time we got the child to Temple Street—I think it was Temple Street we took the child —it was dead.
That fixed in my mind the rule that the only safety is: "If you drink do not drive; if you drive do not drink". I do not honestly think that any one of the four of us was drunk on that occasion but none of us would ever be easy in our minds the rest of our lives if we had not taken the precaution of insisting that the driver of the car had no drink and that we did not take out our car. If we had killed that child—I believe the driver was utterly blameless and he was so found subsequently to be: the child, playing, looked over its shoulder as it ran out —whatever the attendant circumstances, there would have been a psychological trauma that we would have carried through life. But for the fact that we had foreseen the essential urgency of the rule: "If you drink do not drive and if you drive do not drink", one of us would have had regrets for the rest of our lives.
Mind you, I believe it largely devolves—I will not say exclusively—on parents to teach their children that lesson in their adolescence, not by assuming the attitude of excessive rigour and undue capacity to be shocked, but simply to lay down that minimum standard of conduct. It may be disedifying to take a drop too much, but it is unworthy and it is criminal conduct when going out not to provide that at least one of you will be on the wagon and that he will be the only one to touch a car. Therefore, with all those things present to my mind, I am prepared to go a long way to help the Minister for Local Government with the problem he is called on to deal with. I exhort Deputies to join with me to ensure that there are limits beyond which we should not go, conscious as we are of the gravity of the problem and the magnitude of the difficulties associated with its solution.
I am sure there are some relatively minor matters in regard to this Bill on which I should ask for specific information, although I imagine Deputy Fitzpatrick has already mentioned them. I cannot understand why the Minister wants power under section 9 to control the importation of vehicle parts. I do not know what that has got to do with a Road Traffic Bill. I can understand it in the context of a general policy of protection or something of that kind but I cannot see how it comes into the context or relevance of this Bill. I would be glad, when concluding on this stage, if the Minister would give us a more concise explanation of why it is here.
I would direct the Minister's attention to section 27. This deals with the person who is in charge of a car. Subsection (3), paragraph (b) says:
a person who is or has been in charge of a mechanically propelled vehicle in a public place with intent to drive or attempt to drive the vehicle but not driving or attempting to drive it and who, in the opinion of the member, is commiting or has committed an offence under this section.
Offences under this section are set out in subsection (1) which states:
Whenever a member of the Garda Síochána is of opinion that a person in charge of a mechanically propelled vehicle in a public place has consumed intoxicating liquor, he may require him to provide in the prescribed manner a specimen of his breath by exhaling into an apparatus designed for the purpose of indicating the presence of alcohol in the breath.
Subsection (2) states:
A person who refuses or fails to comply forthwith with a requisition under this section shall be guilty of an offence.
Subsection (3) states:
A member of the Garda Síochána may arrest without warrant—
(a) a person who has been driving or attempting to drive a mechanically propelled vehicle in a public place and who, in the opinion of the member, is committing or has committed an offence under this section, or
I want to draw the Minister's attention to this. I have had cases drawn to my attention about a man who comes to the conclusion that it is not wise for him to drive a car, and who has deliberately gone into the back seat, divorcing himself from the wheel and from the ignition. He has gone to sleep because he knew he was not fit to drive a car at all and he wanted to get into a condition in which he would be fit to drive a car. Short of lying down on the grass margin in the lane or going away into a field and abandoning the car, he deliberately got out of the front seat and went into the back seat in order to recover himself and be fit to drive a car.
I have also known of cases where people found they were getting sleepy. It has happened to myself. I have been driving a car and I have been conscious that I was getting sleepy. I have stopped the car and gone into the back seat. I went to sleep and slept for ten or fifteen minutes. I then got up and walked up and down the road for five minutes to get some fresh air. I got into the car and was able to drive perfectly safely. Under this section, as far as I can see, if a Garda Síochána comes along in either of those situations, he can find me guilty of an offence because I am in charge of a car which is actually stationary. Suppose I have a higher alcoholic blood content than the Bill allows, and have put myself in the back of the car to keep away from temptation or danger, am I not substantially complying with what the law requires, that is, that I have effectively prevented myself from driving a car?
Now, I know some scrupulous Garda Síochána will say: "You could not be up to them. He would know you were coming to get your claws on him and he could jump into the back of the car". It is like the Revenue Commissioners who want the right to put the ball and chain on to every person who has not paid his tax. They want to get their claws on to him and they are prepared to swear that if they have not the right to put that manacle and chain on to that person, they cannot get the tax from him. Take the manacles and chains away and the Revenue Commissioners get their tax the same way.
Every police officer will always ask for more and more power, accompanying it with the assurance: "We are neighbours' children. You do not expect us to act like lunatics or madmen. Those powers will be used reasonably". Of course they will be used reasonably in 70 or 80 per cent of the cases but it is the 20 per cent we have got to look after. I love the story of the man driving his car without due consideration from St. Stephen's Green down Grafton Street and the garda who used to be on duty there, being a man of long experience, protected him from the manifest gesture of careless driving. He walked over to the car with great solemnity. The man in the car felt he was guilty and was bracing himself for a serious assault. The experienced guard looked in through the window at him and said: "Do you, know, you are driving like an ould wan". He then waved him on. That was a sensible man but you could get a young lad dealing with that situation and there would be ruaile-buaile, with patrol cars coming from the four corners of the city and blue murder, whereas when the man was told by the experienced garda: "You are driving like an ould wan", he said to himself: "I made a damn fool of myself at the top of Grafton Street. I was lucky to get a reasonable guard and it will not happen again".
We are not legislating in the belief that all public servants are experienced, prudent and sensible; we are legislating in the knowledge that we are human and that public servants are human. Therefore we must put into the hand of the public servant no more power over the individual citizen than can be safely committed to him. I should like the Minister to look at that question and ask himself if the man has taken precautions to preclude himself from driving in the manner described by me, it is appropriate to describe him as in fact being in charge of the car and in the process of committing a statutory offence.
I ask the Minister to look at section 34. I think he will agree with me that to understand that section is extremely difficult:
(1) On the hearing of a charge for an offence under section 49 or 50 of the Principal Act, it shall not be necessary to show that the defendant had not consumed intoxicating liquor after the time when the offence is alleged to have been committed but before the taking or provision of a specimen under section 29 or section 32.
(2) Where, on the hearing of a charge for an offence under section 49 or 50 of the Principal Act, evidence is adduced by or on behalf of the defendant that, after the time when the offence is alleged to have been committed but before the taking or provision of a specimen under section 29 or section 32, he had consumed intoxicating liquor, the court shall disregard the evidence unless satisfied by or on behalf of the defendant that but for that consumption the concentration of alcohol in the defendant's blood (as specified in a certificate under section 42 (3) or 44 (2) ) would not have exceeded a concentration of 125 milligrammes of alcohol per 100 millilitres of blood.
That is pretty complicated but I can follow it on close study, but now I come to subsection (3) and I would like somebody to explain that to me:
A person shall not take or attempt to take any action (including consumption of alcohol but excluding a refusal or failure to provide a specimen of his breath, blood or urine) with the intention of frustrating a prosecution under section 49 or 50 of the Principal Act.
A person who contravenes this subsection shall be guilty of an offence.
Can anybody make head or tail of that because I cannot and I did not begin construing Bills today or yesterday? I would invite the Minister to have a confidential chat with the draftsman and to ask him whether he understands it. I shall not ask the Minister to state explicitly to the House whether he, the Minister, understands it or not, but I suggest to him that whatever that subsection is meant to mean could be more explicitly expressed.
I pass to section 41:
No action or other legal proceeding shall lie (except in the case of wilful neglect or default) against the Director or against the Bureau or any members or officer or servant thereof by reason of, or arising out of, the carrying out of any analysis or determination under this Act.
I do not see why the word "wilful" should be in there at all. It may be that by a catastrophic disaster a person may have a positive test produced by a servant of the Bureau. You might find a citizen who feels confident and says: "Certainly, I submit to both tests most willingly; I am not in the least afraid of them." He provides a blood and urine sample. He knows he has not touched alcohol in 48 hours. The tests are then made. Remember, by definition, the man is not drunk. All that is charged against him is that he has more than 125 milligrammes of alcohol to 100 millilitres of blood. The samples are taken and the Bureau takes them in charge.
In the Bureau is a drunken bowsy who has got the job there because he could not hold any other job and because he knows a Fianna Fáil TD who said: "He is on the batter night and day; he has a wife and a long string of delicate children. Give him a chance; he cannot do much harm in the Bureau." He takes the sample and he returns a report to the effect that this fellow was as drunk as a flute-player. The man is prosecuted. He knows he has not had a drop of drink for 48 hours before those samples were taken but the Bureau says: "You were as drunk as a flute-player." The man will call evidence. He will try to get somebody who has been with him for every minute of every hour of the previous 12 hours to demonstrate he has not touched alcohol but there will be at least 40 per cent of the charitable citizens of this city who will say: "There was never smoke yet without some fire."
He establishes a defence of his character with the impeccable test that he was in company—mind you, that is not an easy thing to do—for every minute of every hour of the previous 12 hours. He then establishes that the drunken ex-secretary of the Fianna Fáil cumann could hold down no other job and that he has not been sober after midday for the past 15 years. He establishes that he was weaving drunk when he made the test and that, in fact, he reported on the samples provided by a drunken coal-heaver from the North Wall, in respect of a leader of the Bar, the medical profession or even a Deputy of this House, perish the thought. He sues the Bureau for damages for slander or libel, if that is the appropriate word.
The Bureau says: "Yes, we hired a drunken old bowsy who was kicked out of every other job because he was the displaced secretary of the Fianna Fáil cumann and they could plant him nowhere else. They had him above in Lower Mount Street for a while and they had to push him out of even there and all he had to do was sit below in the coal-cellar and he would not even sit there. They got rid of him and put him into the Bureau. We admit he was as drunk as a flute-player. We admit he made a report on the samples provided by a drunken coal-heaver from the North Wall and we admit that he produced them in the court because he got them. We admit this person was convicted on false evidence and that he suffered great damage in his reputation and heavy financial loss."
Section 41 of the Road Traffic Bill, 1966 says that unless you can prove wilful neglect, you are down the drain. You get up and say: "Well, I came to court principally to get damages; I am entitled to damages. I came for litigation." The answer is manifest: "You are not entitled to succeed. Section 41 of the Road Traffic Bill precludes you from succeeding, not only against the director of the Bureau, not only against the Bureau itself but against any member or officer or servant thereof."
I suggest to the Minister that that word ought to be taken out and that the Bureau itself ought to be liable for neglect or default the same as anybody else. If not, I do not doubt that the servants in the employment of the Bureau will be eminently satisfactory. I do not doubt the director, and I do not doubt that one of the conditions of his employment is that he will appoint people directly on the basis of "appointing those who support us, all other things being equal", but bearing constantly in mind that those belonging to Fianna Fáil cumainn are a little more equal than anybody else. I think people appointed on that basis are at least liable for neglect or default on the same terms as anybody else.
There is an odd feature, Sir, in section 58. It provides:
(1) A person who is found in a public place in such a condition, because he is under the influence of intoxicating liquor or a drug, as to be a source of danger to traffic or himself shall be guilty of an offence.
(2) A person charged with an offence under this section shall not, in respect of the facts alleged to constitute such offence, be charged under section 12 of the Licensing Act, 1872.
I do not know what that means. Where is the penalty clause? What penalty clause covers section 58? I could not find it. This is capable of explanation and I should be glad to have it when the Minister concludes.
These are points upon which I call for review and consideration. They are relatively unimportant, though I do not think they should be regarded as unimportant. I think it is necessary to have negligence attached to members of the Bureau. The other points I mentioned are worthy of careful consideration but the matters I have mentioned in connection with Part V of this Bill are, in my judgement, of fundamental importance. I do not think the matters I have mentioned should be made the subject of a Party whim. I want to proceed on the assumption that, whatever our differences in this House may be, we share a common purpose in vindicating the fundamental rights enshrined in the Constitution for all citizens of the State. Part V of this Bill is gravely trespassing on these rights. I can see readily that the quality of this trespass may not be of a kind that is immediately manifest to everyone but I am certain that it is a very real trespass. I am certain it is a very substantial step along a very evil road. I hope the Constitution is strong enough to arrest it.
On these grounds, I direct the Minister's special attention to what I have said in regard to these matters and I urge him strenuously to promote general support against that which I think is a draconian method of control of what I can see readily to be a great evil. He should remove the penalties to which I have referred and substitute therefor a right in the Garda authorities to offer this procedure to any person, and in the event of his refusing to avail of that, to authorise the Garda Síochána to state that fact in evidence in court at the time of prosecution. The court can then determine on the facts whether the reluctance to submit to these personal indignities, was in fact a genuine reluctance to submit to such indignities or a desire to cover up the plain fact of intoxication.