Road Traffic (Amendment) (No. 2) Bill, 1978 [Seanad]: Committee and Final Stages .
Sections 1 to 3, inclusive, agreed to.
Question proposed: "That section 4 stand part of the Bill."
(Cavan-Monaghan): This is the section which contains the machinery for bringing the Bill into operation. It states:
This Act shall come into operation on such day or days as may be fixed by order or orders of the Minister, either generally or with reference to a particular purpose or provision, and different days may be so fixed for different purposes and different provisions of this Act.
I trust, like Deputy O'Keeffe, that the Minister has all the machinery available to bring the Act into operation immediately. I would like him to deal with that.
: I understand that this type of section is in every Road Traffic Act. From the information available to me it will be only a matter of days before we enact the Bill.
(Cavan-Monaghan): Until the Minister makes an order bringing the Act into operation?
: It will only be a matter of days after signature.
: Do I understand that the necessary regulations are in draft form and are ready to be put in operation once the Bill is signed?
Question put and agreed to.
Sections 5 and 6 agreed to.
: Amendment Nos. 1, 6, 7, 8, 9, 10 and 11 are cognate and we will discuss them together.
: I move amendment No. 1:
In page 3, line 37, to delete "blood" and substitute "breath or blood".
These are all drafting amendments and bring it into line with the 1968 Act.
(Cavan-Monaghan): A new apparatus is being introduced to carry out a breath analysis. The purpose of the first amendment is to give the bureau power to approve of an apparatus for indicating the concentration of alcohol in the breath as well as the blood.
: The provision for this type of apparatus was in section 30 of the 1968 Act but it was never used.
Amendment agreed to.
Question proposed: "That section 7, as amended, stand part of the Bill."
: I have a technical point but those are the type of points that, in the short time available to us, we should look at.
In subsection (2) (e) there is a reference to the approval of apparatus for indicating the concentration of alcohol in either breath or blood. In studying the Bill I noticed references to drug, alcohol and an intoxicant, which is a word used in section 10. Is there any danger that, by specifically providing for an apparatus for indicating the concentration of alcohol in the breath or blood, power is not being provided to the bureau to assess the level or effect of drugs? Is there any danger of there being a loophole in the Bill because power is not given to the bureau to deal with an intoxicant? There is a specific reference to apparatus in relation to alcohol. As there is not a specific reference, and therefore a specific power, in regard to drugs or the other item defined in the Bill as an intoxicant, is there any danger that the bureau may be considered not to be empowered to approve apparatus in regard to those items? It is a technical point.
: The apparatus referred to will be used by the Garda, either on the roadside or at the station. It had nothing to do with the bureau. It is commonly known as the alchometer. Subsection (2) (b) refers to alcohol in the blood or urine and to the presence of drugs in the urine. The advice available to me indicates that the word "intoxicant" covers all types of alcohol and that it would be more effective than the word "alcohol".
: The section provides for the bureau to arrange for the approval of such apparatus. The proposal is to broaden the scope of this by including "breath and blood". Would it be in order for the Minister to clarify what the role of the bureau would be in regard to approving such apparatus?
: The purpose is to ensure that any type of apparatus will not be used, that an apparatus will have to be approved by the bureau before it can be used.
: We accept the amendment in broadening the scope of what the terms of reference will be, but in doing so are we to take it that, in arranging for such an apparatus and approving of such an apparatus the bureau will be responsible for ensuring that the equipment used by the Garda on the road or in the station will be in good order? On whom will the onus of maintenance and proof rest? If somebody claims in their defence that the apparatus was defective, will the bureau be called to testify or will there be a procedure to show that the apparatus was in order?
: If the apparatus was claimed to be defective, they would have to prove it to the court.
: Would the alchometer record the level of a breath test? Am I correct in thinking that it would not record the level of drugs?
: There is a special provision made for drugs.
: So that is the reason why the apparatus is confined to alcohol.
Section 7, as amended, agreed to.
Section 8 and 9 agreed to.
: Amendments Nos. 2 and 4 are cognate and amendments Nos. 3 and 5 are cognate. Amendment No. 12 is consequential on amendments Nos. 2 and 4. Amendment No. 13 is consequential on amendments Nos. 3 and 5. Amendment No. 2 is before the House but we will discuss with it amendments Nos. 3, 4, 5, 12 and 13.
: I move amendment No. 2:
In page 4, subsection (2), line 37, to delete "100" and substitute "80".
I am conscious of the fact that there must be no delay in pushing this Bill through both Houses, but I would be failing in my duty as a legislator and as a medical doctor were I to allow this Bill to go through with provision for a level of 100 milligrammes of alcohol as the upper legal limit. When the 1968 Bill was introduced I tried to persuade my colleagues that a level of 80 milligrammes was the upper limit of normal, but I must confess that I failed to persuade them.
I must make the charge that vested interests in this House are opposed to the lower level and it is a terrible shame that we should bow to these pressures. I am sorry to have to make these charges but lives are at stake and we are obliged to do something about it. There is no argument in favour of a limit above 80 milligrammes of alcohol. There is no rational argument in favour of it in 12 countries— Austria, Belgium, Denmark, France, Spain, Switzerland, UK, West Germany, Finland, The Netherlands, Norway and Sweden. In eight of them the upper limit is 80 and in the remaining four the upper limit is 50.
As a doctor I would say that the lower limit of 50 be applied but I know I would be asking for too much and therefore I opted for 80 milligrammes. Above the limit of 50 milligrammes of alcohol, driving skill becomes significantly impaired. The reflex reactions and general responsiveness are blunted above that level. Above 80 milligrammes no person is capable of driving a car. It has been proved in all these civilised countries in Europe that drivers are killers above 80 milligrammes.
I know that vested interests are still pleading for a limit of 100 milligrammes—the publicans and the alcohol industry. It would be a shame if we were to bow to them when we know that arguments exist in favour of the lower law limit of 80. In Britain serious consideration is presently being given to lowering the level to 50. I know the Minister is a sincere and honest man and I appeal to him seriously to consider the amendment. I did not put down the amendment for the sake of argument. We could go happily into the recess knowing we had done a responsible job as legislators. I am confident that we are taking this carnage on the roads seriously and doing something positive about it. I appeal to the Minister to consider this seriously.
: I accept the sincerity of the Deputy's contribution and his intention in what he is trying to do. The figure was formerly 125. We decided to reduce it by 20 per cent to 100. I should like to think that this Bill will not solely catch the drunken or incapable driver but will have a deterrent effect on many people. That is very important.
I think the average level in the past in the case of people prosecuted was around 200, a disgraceful level by any standard. Deputy O'Connell named other countries, and I accept the low figures which he gave for each of these, but it is also true that many of these countries have a two-tier system. For instance, Sweden is very tough in regard to drunken driving and puts people in jail for week-ends and releases them to work for the remainder of the week. They have a figure of 50 at one end and 120 at the other. Some member States of the EEC also have the two-tier system, ranging in some countries for the more serious offence to 150. Even in Northern Ireland they have figures of 80 and 120 as far as I remember.
While many have a figure as low as 50, not too many have the single figure of 80 or less. Some operate on a single figure basis. The country that compares exactly with us—I do not say their history is good on that account—is the United States. We consider that a drop from 125 to 100 was appreciable, something that would really hit the public attention and bring home to them the seriousness of what was happening on the roads.
Lest anybody should think that if a person is asked to submit to breath analysis and found to be under 100, perhaps as low as 50, he is immune, I should say that if such person appears to the garda to be incapable and unfit to drive, he is not immune from prosecution and may be charged on clinical evidence—I think that is how the legal personnel refer to it. People will be no more immune than in the past. Prosecutions can be brought under different Acts or sections just as people were prosecuted since the suspension of the previous legislation without use of the breathalyser or urine or blood tests. A number of people have been prosecuted on clinical evidence and convicted. I want to make that clear. It is very important that nobody should assume that if he is under 100 and seen to be incapable of driving he will be immune from prosecution. He can be proceeded against.
We decided to drop the figure from 125 to 100. We believe this will bring home very forcibly to the public what is involved and how serious a view we take of this in common with members of the other parties. If it is found that this Bill will not have the desired effect it will be reasonably easy to amend this section or the few sections involved and reduce the figure to 80. We should at least give the proposed new figure a trial. I believe, as many others believe, that it will have the desired effect. If it fails and we still have many people being killed and maimed on the roads as a result of drunken driving we shall have no alternative but to bring the figure down further. We will do this if necessary. A further ground for our decision to put the figure at 100 was that if you go through the report of the 1968 Commission on which many professions and sections of our society were represented—legal, medical, Garda and many others—you find that there was a difference of opinion and eventually they recommended 125 after a long deliberation. That was included in the 1968 Act.
Finally, we are prepared to amend if this Bill is found not to have the desired effect, but we believe it will achieve the desired results because of the 20 per cent drop.
(Cavan-Monaghan): As I said in my Second Stage contribution there are pros and cons in regard to the proposal for a lower permitted alcohol content than 125 milligrammes. But in considering the matter and in making comparisons with other countries we should bear in mind that we are introducing or confirming an absolute offence. That is very important. In some countries the concentration of alcohol is used as evidence of drunkenness or inability to drive a car which can be rebutted by medical or lay evidence. Here that evidence cannot be rebutted. The driver found with more than 100 milligrammes of alcohol per 100 millilitres of blood when this Act is law will not be able to call any evidence to show that notwithstanding that finding he is fit to drive. Whether he is fit or not he will suffer the penalty exactly in the same way as the drunken driver, fine, perhaps prison and certainly will be put off the road.
In other countries also, as has been said, there is a two-tier system. There is the offence of driving while impaired, driving while badly impaired or driving when unfit to drive. We are having one offence only. According to the information I have I reckon that 80 milligrammes would be the equivalent of three small whiskeys approximately. A survey carried out by a road safety organisation of 5,000 suspects brought in by the police—I do not know whether here or in England—showed that 50 per cent of those suspects had over 200 milligrammes of alcohol or had consumed about a half bottle of whiskey. I do not represent any vested interest, either the publicans or distilling or brewing interests, but I think that a reasonable approach to this matter in the first instance is that we are bringing down the permitted amount from 125 to 100 milligrammes. That is a substantial amount. The real deterrent will be to frighten people and to bring home to them the consequences of drinking and driving. The Bill can be amended later by a one-line Bill if no other flaws are found in it and if it is thought at some stage that the permitted level should be 80 milligrammes. Those are my views of the Bill, having read it and having considered the position in other countries where they have different types of offences and a two-tier system.
: The Minister did not surprise us in his response. While his offer to review the Bill was welcome, unless the Department and the National Road Safety Association are prepared to establish an elaborate monitoring system the offer is meaningless. If this Bill goes through without our amendment and if there is some reduction in road accidents, as one would reasonably anticipate, without the review and without adequate monitoring we will not be able to know if it could have been more effective had the level been lower. I should like the Minister to comment on what proposals the Government have, either directly or through the National Road Safety Association, with regard to this matter. That is our first response to the Minister's offer.
The point comes back to the basic principle around which this amending legislation hangs, namely, the question of the sacredness of human life and the function of this legislation, which in the main will be its deterrent effect. The fact that we know the law exists hopefully will deter many people from drinking and driving. Nobody in this House seriously expects that the Garda, with the limitations on overtime and in view of their other responsibilities, will be able to man every road in the country during the weekend in order to stop cars and implement the breathalyser test. As we see it, the legislative intent is in the deterrent component.
The Minister is of the view that a reduction to 100 milligrammes is adequate. Our view is that the dramatic increase in road deaths, as instanced by Deputy O'Keeffe on Second Stage, is too great to rely on the reduction proposed by the Minister. For example, if it was found that we were saving too many lives—if one could accept the nonsense of that argument, to reverse the Minister's offer on its head —we could relax the provision in a year's time and bring it up to the 100 level. Significantly, the Minister is not opting on that side. He is opting the other way around. It will not give much consolation to the relatives of those killed on the roads. Nobody has attempted to calculate the actual financial cost to the State in the case of a road fatality. It is a rather macabre thing to do, but insurance companies sometimes get walloped with the court's assessment of the financial cost, which is based on a somewhat weird system of assessment.
Our amendment is proposing to write into the legislation a major deterrent to avoid the unnecessary killing of human life. In its own right that is an acceptable objective, but there is also a materialistic objective in that any death, from the time the ambulance is called out until the burial of the deceased, costs the State an enormous amount immediately. It can also be reflected in the loss in terms of investment from the time the person was born, taking into account the education he received, not to mention the emotional stress caused to the relatives.
Constant monitoring is essential, and without it the Minister's offer is meaningless. He did not indicate in his proposal that it was his intention to have a strict monitoring or that he would review the level after a year based on statistics to be made available to all Members of the House and unfortunately we cannot accept his offer.
: I have listened with interest to the views expressed. My comments are an attempt to present a balanced approach to this issue and not as my party did in the Seanad where this amendment was introduced, to push the viewpoint totally to reduce the level from 100 to 80 milligrammes. I say that from the practical point of view it appears this is not acceptable to the Government. I put the view in the hope that it will make an impression on the Minister, who has an honest and sincere approach to this problem of road deaths, and in an effort to secure some kind of guarantee by way of figures being produced that can be assessed by the House and also a guarantee that amending legislation will be produced if necessary.
A few points occur to me in relation to the controversy as to whether we should have a figure of 125, 100 or 80. The figure of 125 milligrammes was suggested by a commission some years ago. Road deaths have increased quite considerably since then, as has the number of vehicles. I do not think the fact that there was such a high figure ten years ago would have the same relevance today because of those factors.
On the other hand, it appears that positive law must have public support to be implemented fully. I detect a feeling among probably a relatively large section of the community of considerable toleration for drunken driving. I come back to the suggestion I made on Second Stage that this toleration will have to be eroded, and it is all the more important in the context of this suggestion and our discussion of what we might do in the future in relation to this matter. If there is a strong reaction at the moment against too low a level there is a danger that it will be totally unacceptable to a large section of the community. I would not go out on a limb either way. I accept the point made by my colleague. I should like to see a constant review of the operation of the legislation.
From experience I can bear out the figures given by the Minister. Most of the breathalyser certificates I have seen were in excess of 200 and I have seen some of them well up to 300. It is these appallingly high figures we must stop first because anybody driving a car in that situation is so reckless that it is tantamount to a common law offence. What I should like to see the Minister doing is monitoring the results. I do not think that would be too difficult. Then we could have an analysis at six monthly intervals of results shown by the bureau. If the Minister were to assure us he will do this and make figures available at regular intervals and that he will review the situation accordingly I would accept that he is making a genuine approach to the problem.
: On the question of monitoring, there are monthly reports compiled by the Garda and sent to my Department. There is monthly monitoring in that way, and An Foras Forbartha bring out an annual report based on the figures. If the figures were appallingly bad we should not wait for such an annual report. I suggest that the monthly monitoring will serve to reassure the House that we will know what is going on, that we will know if it becomes necessary to reduce the level from 100 to 80. It is all-important to know that we will have monthly monitoring—that we will not have to wait for an annual report.
: In all serious or fatal road accidents, is the blood alcohol level taken? That is the only way we can monitor properly. That is what we must undertake.
: It is not possible to do it in the case of every road accident. If a garda believes that drinking is involved he will take the necessary action, but if an unfortunate person is killed it will rest with the post mortem. That information is available from post mortem examinations.
: I accept the Chair's concern about the time, but if this section were got over it would be plain sailing from then on. From reading the Bill I am not clear about how this will work. I am talking about medical monitoring in the Medical Bureau and whether monthly figures of such monitoring would be made available. If a person is stopped by a garda and if the garda forms the opinion that the person is drunk and that he should take the breath test, and if that test shows that the alcohol level is so much, what we should like to know in order to make sense of this whole thing is the number of tests that were above 100 and the number between 80 and 100. Then we would have a percentage. It is not clear from the Bill what the procedure will be.
: I omitted to refer to the Medical Bureau. We get monthly reports from them. We have reports from both the Garda and the Medical Bureau.
: Would monthly reports on serious road accidents be supplied to us within six months?
: If blood samples were taken and sent to the bureau we would get the reports. In the case of road deaths it would be a matter for the post mortem.
: We have got to examine reports and correlate the blood alcohol levels and the number of road accidents. I am suggesting that in every serious road accident blood tests should be taken and the reports of them published. There are many serious non-fatal accidents in which people are maimed for life.
(Cavan-Monaghan): There were 192 people killed on the roads in the first four months of 1978, an increase of 50 per cent on the same period last year. It is generally admitted in regard to mechanically propelled vehicles that the two greatest causes of accidents were alcohol and speed, and I do not think we can analyse one without having regard to the other. I submit that the Road Traffic Act simply is not being enforced. When did anybody see a speed trap on any of our roads? I believe the gardaí have been called off road traffic work. Anybody who reads local newspaper reports of court cases will see it is rare to have anybody charged with speeding, although we all know there are cars flying through the country at speeds of between 70 and 85 mph when the national speed limit is 60. One could be accused of speaking softly about driving while drunk but here we are pulling down the permitted consumption of beer to two pints, if my mathematics are correct.
That was a move in the right direction, but we are now in a period when the number of cars on the roads is multiplying and the national speed limit is being ignored. The Minister and the Minister for Justice should direct their attention also to that aspect of the slaughter. Perhaps I could be accused of getting into politics when I say this. Since the troubles in Northern Ireland and since the Garda have been used for other purposes, and with the cutback in overtime, there is simply no presence of road traffic enforcement gardaí on the roads.
: We are on one specific item, whether the limit should be 100 or 80.
: The kind of information we would like in a monthly or quarterly form from the medical bureau would be: the number of cars stopped by the Garda, first, to get the total samples, and the number of people who in the opinion of the Garda needed to take the breath tests and consequently the number of people who had a blood or urine specimen taken: from that specimen, the percentage over 100 level and the number between the level of 80 and 100. The latter components of that list are the critical ones. Without that kind of information it would be very difficult to make sense of a review.
: On the question of the medical bureau dealing with the number of people stopped by the Garda, this cannot be done by the bureau. The medical bureau can deal with the number of samples over the limit in the Bill, whether blood or urine. They cannot relate them to any specific accidents. They will make monthly reports based on their tests and analyses. The Garda will make their monthly reports. They will supply the information dealing with the alchometer as distinct from the other two tests.
: Where serious accidents and fatalities are involved, would there be great problems about the testing of blood alcohol level? I want to try correlate the accident and the blood alcohol level.
: There is also the problem that in connection with serious accidents people will be charged. They may not come before the courts and be convicted or acquitted for 12 months. The question of the matter being sub judice is involved if that is the case.
: Could that not be done without naming people?
: We will get as much information as we can and as we are entitled to. We will get the information on tests carried out by the State Analyst. We cannot relate them to any specific accident.
: I appreciate that. We will compile the information and base our judgment on what action is necessary on the report from the State Analyst and the Garda.
Amendment put and declared lost.
Amendment No. 3 not moved.
Question proposed: "That section 10 stand part of the Bill."
: There is one technical point. I note the use of a new word in the section, the word "intoxicant". My recollection is that this was not included in the old section 49. I wonder what the reasoning is behind the change of words. Sections which have been tried and tested in the courts and found to stand up should not be changed lightly.
: Previously we used the word "alcohol". The legal advice now available is that we should use the word "intoxicant", which includes alcohol and certain other liquids or whatever may be involved. It covers more than just alcohol. It covers a wider range.
(Cavan-Monaghan): Do the offending drugs react in the same way to tests as alcohol?
: When the sample is sent to the State Analyst it is not a question of whether it is above or below 100. It is the presence of drugs or a combination of alcohol and drugs.
Question put and agreed to.
Amendments Nos. 4 and 5, not moved.
Question proposed: "That section 11 stand part of the Bill."
(Cavan-Monaghan): The word “intoxicant” is also mentioned in this section. Is it an offence to have drugs in the system?
: If the State Analyst can prove the presence of drugs and if the person was incapable of driving in the opinion of the Garda.
(Cavan-Monaghan): In order to convict for a drug, visual evidence of the Garda or a doctor is needed that the man was falling around the place and was not fit to drive a car. If he says he did not take a drink for the past six months and drugs are found in his system, he can be convicted of driving under the influence of a drug.
Question put and agreed to.
Question proposed: "That section 12 stand part of the Bill."
: On another technical point concerning the definition, we talked about the word "alcohol" and in the last two sections we came across the word "intoxicant". In this section we find the use of the words "intoxicating liquor". Has it been considered that confusion may arise as a result of these different expressions? Arising out of such confusion cracks may be found in the Bill. What is the reason for not defining one word and sticking to it rather than having three variations?
: This section deals with what is commonly known as blowing into the bag. All the bag will tell is whether intoxicating liquor is present. This is identical with the section in the 1968 Act. The breathalyser, or the bag, or whatever you wish to call it, will only tell of the presence of intoxicating liquor. You have to go on further.
(Cavan-Monaghan): What is the other called?
: What is the difference between intoxicating liquor and alcohol? I am just wondering if they are the same. I am not an expert. Why not use the same expression? Is there a danger of creating confusion by using different definitions for what appears to be the same thing to a layman?
: We want to clarify this point because, once we get this picture clear, many of the other sections will follow from it. In the absence of regulations we can only ask questions about the bag. It will simply confirm the opinion of the Garda that the person has drink taken. It will not indicate any level as such? Is that correct? It is the specimen which determines the actual level?
: As distinct from the alchometer.
(Cavan-Monaghan): This puzzled me before. Could the Minister tell me what is the offence referred to in subsection (3)? Is it the offence of driving with alcohol or a drug in the blood, or is it the offence of refusing to submit to a request to blow into the bag?
: It is refusing to blow into the bag.
(Cavan-Monaghan): We had a long debate about this before and we have no time to go over it now. 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. Is that the offence of failing to respond to a request to——
: The offence is the refusal to blow into the bag.
: I notice in regard to the alcoliser which is used for finding out whether there is alcohol in the breath and is dealt with in section 12 as opposed to the alchometer which comes in under section 15 that there seems to be a difference. Under section 15, the member of the Garda may indicate the manner in which or the place, including a vehicle, where the driver is to comply with the requirement, whereas under section 12 dealing with the ordinary bag the member of the Garda is empowered to indicate the manner in which the defendant is to comply with the requirement. Why is there included in one section an additional power to the guard to specify the place, including the vehicle? If that is necessary in section 15, would not that power also be necessary in section 12?
: One is dealing with two different instruments. The bag to which we have been referring is in plentiful supply. In the other section we are dealing with the alchometer which is not in plentiful supply but could be placed on a certain part of the road or in the garda station. They are quite expensive instruments to set up and put into operation and will not be in plentiful supply.
: Will they be carried around in cars?
: They can be operated from a car. As they will not be very plentiful, they will be only in certain areas. I mean by that that they will be at a given place at a given time or at the garda station. That is why the garda will specify where the person must go.
: The garda might bring a person to a place other than a garda station?
Question put and agreed to.
: I move amendment No. 6:
In page 6, line 40, to delete "breath" and substitute "breath or blood".
Amendment agreed to.
: I move amendment No. 7:
In page 7, line 13, to delete "breath" and substitute "breath or blood".
Amendment agreed to.
Section 13, as amended, agreed to.
: I move amendment No. 8:
In page 7, line 21, to delete "breath" and substitute "breath or blood".
Amendment agreed to.
: I move amendment No. 9:
In page 8, line 5, to delete "breath" and substitute "breath or blood".
Amendment agreed to.
Section 14, as amended, agreed to.
: I move amendment No. 10:
In page 8, line 10, to delete "blood" and substitute "breath or blood".
Amendment agreed to.
: I move amendment No. 11:
In page 8, line 35, to delete "blood" and substitute "breath or blood".
Amendment agreed to.
Question proposed: "That section 15, as amended, stand part of the Bill."
: We are talking here about the alchometer and the refusal to take the test, and it is a good defence to the charge of refusing to take the test from the alchometer to show that the defendant offered to permit a designated registered medical practitioner to take a specimen of his blood. Will there be an obligation on the arresting officer to indicate to the defendant that he has this option, that he can nominate a designated medical practitioner to take a sample of blood in lieu of the test which he has just refused? This seems to be an option which should be pointed out. If the ordinary blood test is taken, that will prove the situation one way or another, but the defendant may not be aware of this provision.
: There is an option for the person but the garda does not have to indicate that. He can opt to give blood and if he chooses to do so he will have the opportunity, but it is not for the garda to point this out.
: Would not the situation be that if he refused he would be brought to the garda station and put through the normal mill, and blood or urine would be taken?
: On this clarification of options, it seems that the regulations which are now in draft from should make it very clear that a person has the option of giving a blood or urine sample and should be asked. If someone is asked to give a blood sample and refuse, he or she should be told that there is an option. Many people could be quite nervous and upset by the process of being taken by the gardaí and they should be put at ease. The regulations should specify exactly what is happening and people should be told what their options are. Someone who is arrested should not be expected to know the law to that extent in advance.
: Under the previous Bill this was the procedure and a garda would have to spell this out.
: We are amending that Bill.
: That was one of the weaknesses of the last Bill. If a person refuses he will still be brought to the garda station and will still go through the procedure, whether it is blood or urine if he refuses, without necessarily having to tell him so.
: The Minister has the power under regulations to specify the way in which section 15 is to be administered. If I am right in assuming that, it would be positive and humane to indicate to people that someone who is brought to a place or to a garda station should be told in advance what is happening and why he is being brought there and what his options are under law. I do not think it is up to that person to be in a legally informed position sufficient to assert his rights. He may be under some form of stress.
: In the last Act and the regulations made thereunder, there were very technical rules laid down and it was very much because of noncompliance with those rules or because of the failure to prove compliance with those rules, which was more often the case, that the system broke down. The Minister has nudged the balance in favour of the prosecution to that extent. I can see reason for it, but at the same time it is important that a defendant should be given as much opportunity to be made aware of his or her rights. Even though the onus of proof is not now on the prosecution to prove A, B, C and D, there should be a standard procedure whereby a defendant is made fully aware of his or her rights under the Act and the options open. Otherwise there would be an unfair bias against the defendant who could be in a totally nervous state not altogether related to drink.
: There will be set procedures for the Garda, but we will not prescribe them again and weaken the Bill, as happened in the past. We will give ample publicity to the right of people under this Bill, but without prescribing it, because that would weaken the Bill.
: Do I understand that if, for example, I am taken in under some state of shock not necessarily related to alcohol I will not be told by the Garda that under section 15 I have this and that right and that it is up to me to refuse and then to be told that if I refuse to give blood I may give urine instead?
: I am not saying that. I am saying that this will not be prescribed. I am not saying that a person —hopefully it will not be Deputy Quinn—will not be told. That person will in all probability be told under the standard procedure employed by the Garda. We are not going to prescribe it again and weaken the Bill as happened with this type of prescribed procedure in the past.
: Will there be a standard procedure?
: Will there be a procedure which will ensure that the offender will be within his or her rights under the terms of this Bill?
: I would prefer to call it a set procedure for all members of the Garda.
: I support the Minister's intention not to weaken the Bill by way of regulation which Deputy O'Keeffe's colleagues can play havoc with, but at the same time in the interests of equity and in view of the fact that the centre of gravity has been titled very much in the interests of the State and away from the individual, the Minister should, if he sets procedure, without weakening the Bill, take full account of the views that have been expressed tonight.
: The set procedure I am referring to will be set by the Commissioner and I will certainly bring that to his notice.
: Does the Minister indicate genuine concern on this point?
Question put and agreed to.
Question proposed: "That section 16 stand part of the Bill."
: This section deals with procedures following the provision of specimens under the alchometer or failure to so provide. The first point is one of draftmanship. In subsection (1) there is reference to a person who provides a specimen of his blood and the alchometer indicates that he has committed an offence. It is odd that the alchometer should indicate the commission of an offence. Possibly the reading on the alchometer might indicate the offence.
: It is a small drafting point. The second point is in regard to the requirement of the defendant to sign a document for a member of the Garda. He gets a statement and acknowledges receipt of it by signing his name. An offence is quoted for failure to sign his name. What is the need for that? Secondly, what would happen if the man was so drunk that he could not sign his name? Is this overdoing the situation? It is a bureaucratic approach. Not alone must we have this alchometer indicating a state of drunkenness but there is the absolute creation of an offence for failure to acknowledge receipt of such a statement by signing his name. Is there a necessity for this?
: It is a copy he will be asked to sign. He could refuse this on the side of the road. If he does so he will still be brought in under the other procedure.
: He will be liable to three months in jail for refusing or being unable to sign his name on this document. It does not matter whether it is a copy or not, an offence is created of refusing to sign a receipt. What is the need for him to sign a receipt for a statement setting forth his conviction as a result of the reading of the alchometer? I am all in favour of strict enforcement of this law but I do not like to see unnecessary offences created. This is a statutory offence subject to three months in jail for a man failing to sign his name for something that seems to be utterly unnecessary. I do not see the justification for it. The point could arise that the man would be unable to sign his name yet there is an absolute liability on him to do so because the failure to do so makes him guilty of an offence and liable on summary conviction to a fine not exceeding £100 and/or three months in jail.
: If he is incapable of signing his name the man must be really spoofed and drunk; therefore he should be charged and brought to court.
: The first point the Deputy made is as to why it is necessary to ask a person to sign this duplicate. I ask the Deputy to visualise the situation out on the side of the road where there is one garda and the person concerned. That garda is entitled to have some evidence of the presence of that person there. The signature on the duplicate is evidence of that. If he has not some evidence the fellow could go away and say that he was not there at all. If the man is so drunk as to be incapable of signing this duplicate he will have to be brought in anyway.
: If the alchometer will give a reading indicating that the man is under the influence of drink he will be arrested and brought to the Garda station. If it does not show this he has committed no offence and he will be released. What is the point?
: Do I understand from what the Minister said that it was conceivable that somebody could be stopped, found to have a high level of alcohol in his blood, sign a receipt acknowledging that fact and then drive off again?
: That would be a matter for the garda, but I emphasise that the person can be prosecuted on the reading of the alchometer.
: The follow-up to that would be that there may be a very good reason for carrying the receipt, in fact a laissez passer. We are being theoretical about the possibility of this, but could someone be stopped, tested with an apparatus out on site, found by virtue of this process to have in excess of 100 milligrammes, sign the chit and then drive off?
: In theory, but it is not permitted to happen. It is up to the garda to ensure that it does not happen.
: If the garda does not allow him to do it presumably there is more than one garda there and the argument is that it is advanced by way of evidence.
: Not necessarily. It is not necessary that there would be more than one garda there.
(Cavan-Monaghan): The position under section 16 is that if a person who is detected is very drunk, so drunk that he does not know where he is going, he is obviously guilty of an offence and he will be charged under one or other of the sections and will be liable to six months in jail, a fine of £500 and disqualification for at least 12 months. That is understandable, but this same man may be presented with a document which he is asked to sign and which he does not even see. If he does not sign it he can be convicted of not signing it and sentenced to an additional three months or a substantial fine. That seems to be creating an unnecessary additional offence.
: If this person is as drunk as the Deputy and Deputy O'Keeffe indicate he is going to be brought in anyway and charged with being drunk.
(Cavan-Monaghan): Then he is going to be sentenced as well for not signing a document.
(Cavan-Monaghan): He can be.
: He will not be asked to use the alchometer if he is so drunk. There is no point in asking him. He would probably fall over it.
: What is the purpose of this? It arises only if the alchometer indicates that he has committed an offence. If such arises surely he will be arrested and brought along and given the urine and blood tests. What is the point in creating an offence about him signing his name? Surely if he is guilty of an offence there will be no question of letting him drive off?
: A person can be prosecuted on the alchometer alone without any blood or urine test. If a garda finds a fellow to have over 100, say 105 milligrammes, it is necessary with a view to court proceedings for the garda to have some proof that that person was there.
: He should bring him to the barracks.
: It may not be necessary to bring the man to the barracks. I know the point will come up as to whether he will be allowed to drive away, but——
(Cavan-Monaghan): The Minister is labouring the fact that if the man signs a document it will prove that he was in some place at some time. It will not prove any such thing. It will only prove that he signed a document, not where he signed it.
: What he will sign will state where he was found and so on.
Question put and agreed to.
Question proposed: "That section 17 stand part of the Bill."
: I appreciate that time is against us but what is the difference between if one is asked to go to the police station and an arrest? The wording here is:
he may require the person to accompany him to a Garda Station.
One is required to go, but on refusal is arrested, in effect. Could that be simplified and then the following section provide that if one does not accede to the request one will be arrested and fined anyway?
: Where drugs are concerned the gardaí can have a suspicion. It is not a common offence and we have not much experience of it. A person may not necessarily be incapable, but the garda may have a suspicion.
: On section 17 generally, for example, will there be an offence if somebody is stopped and asked to go to the Garda station and a specimen is taken and it is found that he took drugs and is intoxicated in the legal sense? If in defence the person says the drugs were medically prescribed and that he was not aware that they had an intoxicating effect, will that be an acceptable defence?
: That is a matter for the courts. People who are on heavy drugs by prescription are usually warned by their medical practitioner not to attempt to drive if the drug has an intoxicating effect. If a person is incapable because of excessive drugs, even though they are prescribed by the doctor, that person is endangering life the same as the drunken driver.
: Most people who drink, and even those who do not, have an understanding of the impact of alcohol but with a lot of the drugs prescribed there is not the same understanding. I am wondering about the clear culpability of someone who has been found while driving to have an unacceptable level of drugs in his system. Is the Minister saying in effect that any level above a certain prescribed level of drugs is an offence and that it will be up to the court to decide whether or not the defence put forward by the defendant is acceptable.
: There is no level where drugs are concerned. If a person is found to be incapable of driving and is charged with that offence because of the presence of drugs the case will rest on the clinical evidence of the doctor called to the scene.
: Do I understand that if someone is stopped and a specimen is taken it will not be known until the results of that specimen come out whether there is a drug there or not, it will be the opinion of the garda that the person is intoxicated as a result of drugs, and that therefore a registered medical practitioner will have to be called and a normal clinical test will have to be taken.
: The report of the bureau will not be the evidence that will matter. The clinical evidence of the doctor, who will also be given a sample of the person's urine to take away for analysis is the evidence that will matter in court.
: We must move it along if we want any discussion on the remaining sections.
: There are only a few more points outstanding, Am I correct in thinking that if a garda has a suspicion and brings a person to the station where a urine sample is taken and is sent off if that shows more than 135——
: The reading does not apply to drugs.
: What would come back to the bureau in that situation?
: Proof of the presence of drugs.
: Does that mean that a report indicating the presence of any drug in the urine will be prima facie evidence or will it be conclusive evidence?
: It is not conclusive evidence. The doctor's evidence is more conclusive.
: It is then a question, as under the old section 49, whether the presence of the drug is sufficient to affect the person's driving.
Question put and agreed to?
Amendments Nos. 12 and 13 not moved.
Question proposed: "That section 18 stand part of the Bill."
: Subsection (3) (a) refers to the intention of frustrating a prosecution under section 49 or 50 of the Principal Act. This seems to be tilting the balance too much in favour of the State. I would have thought that equity and justice would have required the frustration of a conviction.
: Before the Minister replies, could somebody wanting to call a doctor or a lawyer be considered to be attempting to frustrate a prosecution. Obviously, if one was calling a lawyer he would be trying to find out his rights to see if he could avoid prosecution or defend himself. I have reservations about this point. Is this stretching things too far?
: That will be for the court to decide. This section is exactly the same as the section in the 1968 Act.
: Unfortunately I was not here during 1968.
Question put and agreed to.
Question proposed: "That section 19 stand part of the Bill."
(Cavan-Monaghan): I do not like this section which is a bit sinister in its approach. Section 19 (1) provides that it shall be a good defence for a person who refuses to give a sample of his blood or urine to prove that he has a good reason for refusing to give a sample, presumably a good medical reason. Subsection (2), which is a most objectionable section, goes on to say:
Notwithstanding subsection (1) (b), evidence may be given at the hearing of a charge for an offence under section 49 or 50 of the Principal Act that the defendant refused or failed to permit the taking of a specimen of his blood.
Presumably the prosecution will not even be obliged to say that he had a good reason for doing so. That is going too far. It concedes the entitlement of the person who has a good medical reason for not allowing his blood to be taken to refuse to have it taken, but then the prosecution, in a prosecution for clinical drunken driving, can trot out the offence to blacken the man by saying that he refused to have a sample of his blood taken. I object to that section.
: This section is the same as the one in the 1968 Bill.
(Cavan-Monaghan): I am sure I opposed it then too.
: If the person refused, it is for the court to decide the position because of that refusal, but if a person is charged under section 49 or 50 he is charged on the clinical evidence.
(Cavan-Monaghan): I do not agree with that.
: But if he is charged under sections 49 and 50, he is charged on the clinical evidence. He will be charged, under sections 49 and 50, with drunken driving. But in regard to the charge for refusal it will be up to the courts to decide whether or not he had good reason.
(Cavan-Monaghan): In a prosecution for refusing to give a sample it would be a matter for the courts to decide whether or not he had good or valid reasons. If a person were to be prosecuted for failing to give a sample of blood, and he had a good reason for doing so, obviously that prosecution should be disposed of, dealt with, got over and rid of before he would be charged under section 49 or 50. Subsection (2) of this section gives the prosecution the right to trot this up against the accused, that this man refused to give a sample of his blood notwithstanding the fact that he had a valid reason for doing so and that the prosecution against him on that account might have been dismissed already.
: It has never caused any problem.
(Cavan-Monaghan): It is a bad section and should not be there.
Question put and agreed to.
Section 20 agreed to.
Question proposed: "That section 21 stand part of the Bill."
: I understand from my reading of this section that the old procedure under which a person was entitled to a second test is gone. If so, is there any justification for this? I appreciate he has the option of taking a container and arranging a private test. But if it is somebody somewhere in the country, particularly anybody in my constituency, he will have no knowledge at all where these things could be tested. It might be all right for somebody in the city.
: Why then has the right of somebody to opt for a second test through the medical bureau been taken away?
: But why has this been done?
: Under the last Bill there were so many samples piling up in the bureau, the bureau preserving these over a period, that it led to a very serious problem. This is true, believe it or not; it became quite a problem. Apart from that a person will be given the sealed sample to take to his own analyst for a private test. The result of that test can also be introduced in evidence.
(Cavan-Monaghan): Under this section—and the same applies to section 22—we are giving the Minister a blank cheque, because the doctor who takes the specimen of urine will be required to sign a form which apparently will contain several particulars. That form is to be made by a regulation under section 26. Those regulations do not require that the form be laid before this House. There appears to be a new departure here because this is an important form the doctor will be required to sign saying that he has done certain things— whatever they are; we do not know. But that form will be prescribed by the Minister, under section 26, and the House will have no opportunity of seeing it.
: All regulations have to be laid before the House for a certain period.
(Cavan-Monaghan): If that is prescribed in the statute. Where is that prescribed?
: The 1961 Act; I have not got the reference.
(Cavan-Monaghan): Yes, the Principal Act is the Act of 1961. That is right. Is the Minister telling me that it provides that these regulations shall be laid before the House?
Question put and agreed to.
Question proposed: "That section 22 stand part of the Bill."
: I presume that if somebody takes away the sample offered to them and puts it through an independent sampling and testing the bureau's evidence will be taken as the norm. That is my understanding of this. How will this be argued in court?
: The bureau's will be taken until the contrary is proved.
: If somebody comes in and says they have taken this to another laboratory which has come up with a level, say, below 100, what happens then?
: It is a matter for the court to decide the validity of that evidence.
: Would the bureau then be called in at that stage?
: Yes, if the courts can call them in.
: The follow-up is this: it seems to me that one cannot use the bureau as independent evidence in a sense, because the bureau are not allowed to independently test the two specimens. It is conceivable that it could be tested once on one day, a mistake made and the person convicted on the basis of that mistake. The Minister is eliminating the possibility of that mistake registering—in other words, having the two specimens tested on two separate days when one might get two separate readings.
: No, it is the same specimen. The bureau do not use the whole of the specimen.
: That is what I am saying. If there is a difficulty, and in reality one cannot go to another laboratory because their findings will not be accepted, if one cannot independently use the bureau and ask them to test on behalf of the defendant on a separate day the defendant's supplied specimen as distinct from the prosecution's supplied specimen, the apparent impartiality of all of this is more of a sham than a reality.
: Any doctor can analyse a specimen. It is a sealed specimen the person will receive. If the doctor does not want to do it the person can go to any analyst or laboratory—not the bureau because the bureau will be testing part of a similar specimen.
(Cavan-Monaghan): Is it not a fact, then, that the defendant would have to produce in court a number of witnesses? He would have to produce a witness who handed the specimen to the analyst in Dublin. He would have to produce the analyst in Dublin to prove that he received the specimen with the seal unbroken, that he broke the seal and that he carried out the examination. He would have to come physically to court whereas the prosecution would merely send a form. Is that not the position?
: It is a matter for the courts to decide.
(Cavan-Monaghan): No, we are making the certificate from the bureau evidence.
: It is a matter for the courts to decide the validity of the evidence.
(Cavan-Monaghan): It is not, no. The Minister is wrong in that.
: Could the Minister not concede that in the following section, on the one side the medical bureau's certificate of an analysis is regarded as sufficient evidence—it is this on which the previous argument was based— whereas any independent analyst has to go through all the descriptive processes in a court of law? All I am saying is that in effect the provisions of this section—under which the medical bureau cannot test both cases separately on two separate days; in other words, where the medical bureau can act independently for both— makes a sham out of a lot of this.
: The bureau can test it but the individual has not got a right to insist that the bureau should test it.
: May I ask one question?
: I must point out to Deputies that in four minutes time I must put the remainder of the Bill whether they like it or not.
: In relation to re-tests done under the 1968 Act, might I ask the Minister were there any cases discovered where there was a substantial discrepancy between the results of the first and second tests? Would the Minister have that information?
: The re-tests never showed any difference from the initial ones.
: I wonder can the Minister say that so confidently. I myself have certainly known of differences. In the main, I think you could get a few points up or down.
: But not any major difference.
: The Minister is satisfied there was not any major difference?
(Cavan-Monaghan): Would the Minister undertake to arrange that the bureau would carry out an analysis of the sample, if requested to do so, without writing it into the Bill?
: No. The bureau can do that, but the person cannot insist.
(Cavan-Monaghan): That will put the accused person to very substantial expense.
Question put and agreed to.
: I move amendment No. 14:
In page 11, subsection (1), line 30, after "part" to add "or under Part III of the Act of 1968".
Amendment agreed to.
: I move amendment No. 15:
In page 11, subsection (2), line 37, after "Part" to add "or under Part III of the Act of 1968".
Amendment agreed to.
Section 23, as amended, agreed to.
Section 24 agreed to.
Question proposed: "That section 25 stand part of the Bill."
: I want to voice my disappointment at the non-acceptance of a suggestion I made a long time ago, a suggestion I will repeat now and go on repeating until such time as it is accepted. I refer to a graduated period of disqualification. I have always regarded it as most unfair that someone very drunk in charge of a vehicle should always get the same penalty of 12 months disqualification and someone only slightly over the limit is penalised in the very same way. In the latter case that always seemed to me to be unjust. There should be some graduation of penalty. One can, of course, apply for one's licence back after six months, but the penalty seems to me to be unfair and I would ask the Minister to bear that in mind in the future.
: Any graduation downwards would show a lack of seriousness on our part.
(Cavan-Monaghan): What is the offence under section 53 (3) (a) (2)?
: Under section 53 of the 1961 Act, dangerous driving.
Question put and agreed to.
Section 26 agreed to.
Title agreed to.
Bill reported with amendments.
Question proposed: "That the Bill do now pass."
(Cavan-Monaghan): This side of the House has facilitated the Minister and the Government in enacting this very important Bill. I would like it to be put on record that this should not be taken as a precedent because there is a bounden duty on the Opposition to investigate and consider every Bill fully and carefully. In this particular instance, in order to facilitate the Government in protecting the public, we have had to take short cuts. That is a bad precedent and a dangerous precedent to set. The obligation is on the Government to introduce measures like this in good time so that their provisions can be fully and adequately dealt with.
: I would like to add my voice in support of what Deputy Fitzpatrick has just said. It is not the Minister responsible for road traffic who has introduced this Bill and got it passed with such co-operation. It is the Minister for the Environment. I would ask the Minister on this Stage to have due regard to the positive social impact we hope will come as a result of this Bill. The Bill will create demands in other areas in which he has responsibility and I hope that the Minister will monitor the impact of this Bill.
: I can give that assurance. I can also assure Deputy Fitzpatrick that this will not be taken as a precedent. Once again, I want to express my appreciation for the manner in which the House has expedited the passage of the Bill.
Question put and agreed to.
: The Bill, which is considered by virtue of Article 22.2 of the Constitution to be a Bill initiated in the Dáil, to be sent to Seanad Éireann.
: In fact, the Bill was initiated in the Seanad.
: The Constitution provides that, if we here amend a Bill initiated in the Seanad, the Bill is considered to have been initiated in the Dáil and, therefore, the amendments go back to Seanad Éireann.
The Dáil adjourned at 10.30 p.m. until 10.30 a.m. on Wednesday, 28 June 1978.