I want to draw attention to some of the things said on Second Reading, with reference to the amendment and the remarks made about the problems of enforcement for the Garda and also remarks made about the integrity of the individual. They merit attention and with that in mind, Deputy Fitzpatrick's amendment, as I said last night, complicates the matter further. I suggest, as I have already suggested to the Minister, that section 29 might be amended in the sense that a firm stand is taken on the breathaliser test. There are good arguments for that and I mentioned some of them last night. In other words, paragraph (a) of section 29 (1) is made to stand without having to fall back, which would be the effect really, on paragraph (b) and then provide that it is optional to the accused, or the potential accused, if you like to call him that if he has not yet been charged, to avail himself of either of the two tests, voluntarily. If that were so, subsection (3) of the section could be amended if necessary in order to stand on the breathaliser test itself.
On an analysis, that suggestion will be found to be reasonable and to avoid a lot of the objections and arguments made in connection with the section. As I also said last night, paragraph (b) really has been introduced in an effort to be fair to the accused rather than otherwise. If a person has taken any drink, and we have section 28 there, and in principle, we are all more or less agreed on that, there is no substantial injustice to anybody, if having taken alcohol and taken the risk of driving a car he is asked to stand on the breathaliser test, especially if you provide the optional aspect, and leave the rest to the courts. I do not know what possible objection there could be to that course. I should like to urge it on the Minister. If that is so, the amendment before the House only complicates the matter further.
I suggest to Deputy Fitzpatrick that he withdraw the amendment and that we make representations to the Minister on the lines I am suggesting and which I suggested on Second Reading. By introducing the words prima facie in that amendment, you go a very large way towards defeating in practice what the Bill wants to achieve. There is no use being two-sided about this. As the Deputy knows, I would be all with the Deputy to prevent cases of palpable injustice. That is why last night I asked certain questions in regard to the case made about a person who had taken drink after he had ceased to drive. On the other hand, we have to be realistic and realise that we have section 28, and then, if this is the thing to do, then let us do it effectively. To my mind, “effective” very often means in these cases a certain definite simplicity. I think I am as competent as anybody else in this House to judge on one angle at least and I believe that the breathaliser test will be amply sufficient, even with its tolerances, for the purposes for which it is required in this Bill.
It is not a scientific measurement; it is not a question of having absolute scientific accuracy. Section 28 and the tests prescribed are merely a measure of something else and a person being in the position in which a person who has taken drink is, cannot complain about the tolerances that may be in the breathaliser test. He certainly could not complain if you give him the opportunity of undertaking the other two tests which some people will claim are more accurate and more reliable. That affords him a good defence. In practice, you will probably find that he will not opt because, having regard to the fairly high level of the alcohol content and the likely condition of anyone who is going to be dealt with by the guards in the ordinary way, in practice, there would be no conflict.
I will not delay the House with further details but for these reasons, I would strongly urge on the Minister the simple amendment that paragraph (b) of subsection (1) of section 29 be made optional to the accused and let the court draw its own conclusion if the accused does or does not avail of that option. I would even go so far with the Minister as to say that if the accused does avail of the option then the result must be put in evidence. I am thinking of the case where the accused availed of the option and then found that the result did not suit him. But, it might be optional and then, of course, you would have to consider a consequential amendment of subsection (3) of the same section. That could be done to stand on paragraph (a) of subsection (1).