Road Traffic Bill 2003: Committee and Remaining Stages.

Section 1 agreed to.

SECTION 2.

Mr. Naughten

I move amendment No. 1:

In page 3, line 16, to delete "with" and substitute "while in charge of".

The new section 12(1) of the 1994 Act as inserted by section 2 of the Bill refers to:

"a person in charge of a mechanically propelled vehicle in a public place who, in the opinion of a member of the Garda Síochána–

(a) has either consumed intoxicating liquor,

(b) is or has, with a vehicle, been involved in a collision.

Could a person be breath tested for simply sitting in the passenger seat and not being the driver of the vehicle? What would happen if a driver were not behind the wheel? Does a garda need to be of the opinion that the person was driving the vehicle in the first place? From the way the legislation is worded it seems that a garda has to witness the person behind the steering wheel to enforce the provisions of the new section 12(1)(b). If the definition is extended as I propose in the amendment, it addresses cases where a driver is standing outside the vehicle and not behind the steering wheel.

Minister for Transport (Mr. Brennan)

In proposing the amendment, I understand the Deputy is seeking to ensure the clarity of the new section 12(1)(b). The introduction to the subsection states: “This section applies to a person in charge of a mechanically propelled vehicle”. If I were to accept the amendment, this phrase would be repeated in what is in effect the one sentence. I am satisfied that the current wording establishes a clear basis for the Garda to pursue the application of the requirements of the section. While I know what the Deputy is trying to achieve here, it is not necessary to make the amendment in my view or that of my legal advisers.

The Deputy asked about the passenger. The passenger cannot be breathalysed unless he or she is in charge of the vehicle in the opinion of the garda. This is covered in the first line of the new section 12(1) which states: "This section applies to a person in charge of a mechanically propelled vehicle in a public place who, in the opinion of a member of the Garda Síochána -" and goes on to say in paragraph (b): “is or has, with the vehicle, been involved in a collision”. The person with the vehicle would have to be the person in charge of the vehicle. It could not be a passenger who was not in charge of the vehicle. The Deputy's point is covered. Under this section, there is no question of a passenger who is not the person in charge being breathalysed.

Mr. Naughten

The Minister has made my argument and argued against it. The second part of the first sentence states: "in the opinion of a member of the Garda Síochána". My reading of this is that the opinion of the member of the Garda Síochána applies to (a), (b) and (c) as opposed to an opinion of a member of the Garda Síochána as to whether a person is in charge of the mechanically propelled vehicle. Will the Minister clarify this issue?

If someone is not sitting behind a steering wheel when a garda comes upon the accident or collision, can that person be breathalysed?

Mr. Brennan

The phrase "a person in charge" in the new section 12(1) applies to paragraphs (a), (b) and (c).

Mr. Naughten

I know that. I am asking if the phrase "in the opinion of the member of the Garda Síochána" only applies—

Mr. Brennan

The forming of that opinion applies to paragraph (a) which states: “has consumed intoxicating liquor”.

Mr. Naughten

It does not apply to the person in charge.

Mr. Brennan

The section applies to a person in charge of a mechanically propelled vehicle in a public place who, in the opinion of a member of the Garda Síochána, has consumed intoxicating liquor.

Mr. Naughten

I am not disputing that.

Mr. Brennan

It applies to the person in charge. However, the garda has to form the opinion as to who the person in charge is. If there are a few people at the scene, the garda has to establish and form an opinion as to who the person in charge of the vehicle is.

Mr. Naughten

In my interpretation that the section does not allow for the garda to form an opinion as to who is in charge of the vehicle.

Mr. Brennan

My legal advice on this is clear. The section applies to a person in charge who in the opinion of the member of the Garda Síochána has consumed intoxicating liquor. It states quite clearly that it is the forming of the opinion as to having consumed intoxicating liquor, etc.

Mr. Naughten

I am not disputing that.

Mr. Brennan

We are only talking about the person in charge and nobody else.

Mr. Naughten

We may be splitting hairs here. The Minister is correct in saying it only applies to the person in charge of the mechanically propelled vehicle. I could be involved in a road traffic accident outside the gates of Leinster House this evening having spent the afternoon in Doheny and Nesbitt and there might be no garda present to witness the accident. I could be standing on the footpath by the time a garda arrives. I would not be in charge of a mechanically propelled vehicle at that point.

Mr. Brennan

The garda will form the opinion that the Deputy was the person who was in charge.

Mr. Naughten

The legislation does not state that.

Mr. Brennan

It allows the garda to form an opinion as to who is in charge. If the Deputy were spotted in that position and the garda forms the opinion that he were in charge, this covers the legal position. How a garda forms the opinion is another day's work, which is the subject of much debate.

There are two different provisions in the Act relating to drink driving. Either a driver can be charged with an offence under section 49 of the 1961 Act or a person in charge can be charged under section 50 of the 1961 Act.

Mr. Naughten

I will withdraw the amendment and let the courts decide on it.

Mr. Brennan

It is the best we can do.

Amendment, by leave, withdrawn.

Acting Chairman

Amendments Nos. 2 and 3 are cognate and may be discussed together.

Mr. Naughten

I move amendment No. 2:

In page 3, line 28, after "apparatus" to insert "for indicating the presence of alcohol in the breath".

This is an attempt to clarify the legislation. The new section 12(2)(a) as inserted by section 2 refers to “apparatus for indicating the presence of alcohol in the breath”. However this is not included in the new section 12(2)(b) and section 12(2)(c). It is referred to in the new section 12(5). I move the amendment to make paragraphs (a), (b) and (c) in the new section 12(2) similar.

Mr. Brennan

The new section 12(2)(a) establishes that the apparatus to which the section refers is one that provides an indication of the presence of alcohol in the breath of the person who is required to submit to a test. This subsection is a repeat of the current section 12(2) of the Road Traffic Act 1994. We are repeating what is contained in the 1994 Act, which has stood the test of time. It would not make sense to change this wording.

The new section 12(5) establishes the presumption that an apparatus used for the purposes of this section is an apparatus for indicating the presence of alcohol in the breath. For both these reasons I am satisfied that it is best to leave it as it is. It is a repeat of a current subsection in the 1994 Road Traffic Act, which has withstood some test. I do not suggest it has withstood a specific court test, but it has withstood the test of time.

Mr. Naughten

I do not believe it has withstood a specific court test. If it had, it might have been thrown out because the anomaly already existed. I accept the Minister's point.

Amendment, by leave, withdrawn.

Amendment No. 3 not moved.

Acting Chairman

Amendments Nos. 4 and 5 are related and may be discussed together.

Mr. Naughten

I move amendment No. 4:

In page 4, line 5, after "requirement" to insert "under this subsection".

This is again a technical issue which refers to the section and the subsection regarding the requirements that may be laid down by a member of the Garda Síochána. This is to provide greater clarity to the section and the subsection.

Mr. Brennan

While I again accept the intention here, I am reluctant to depart form the existing provision in the current section 12(2) of the 1994 Act for the reasons I have already stated. When we say that a person must comply with the requirement, it is clear that it refers to the requirement under the subsection. Again, my main reluctance is to interfere with the 1994 Act which has this wording.

Mr. Naughten

I accept the Minister's point about the 1994 Act. The legislation is being rushed through and the Department may not have had much time to examine these amendments. We know an anomaly exists in the subsequent section in the 2000 Act. It may be the case that some of these points will be raised. In the context of the legislation that the Minister intends to introduce, will he ask his officials to review these amendments to see if they could strengthen the legislation and prevent it being open to legal challenge at some future date?

Mr. Brennan

I am happy to have the amendments, which the Deputy has withdrawn, examined again in the context of whether they would be of use in future legislation. It is clear that a member of the Garda Síochána may require a person to whom this section applies to comply with paragraphs (a), (b) and (c). Reference is also made to “the manner in which the person is to comply with the requirement”. Deputy Naughten wants to add the phrase “under this subsection” but “comply with the requirement” clearly means those three paragraphs. The Deputy asked us to examine it, which we will do so, but I am satisfied that it covers his intention. We will study it in the context of future legislation.

Amendment, by leave, withdrawn.

Amendment No. 5 not moved.

Question proposed: "That section 2 stand part of the Bill."

Mr. Naughten

What happens in the case of someone who is injured in a road traffic accident? If a member of the Garda forms the opinion that the person may be intoxicated and that, according to the legislation, an offence has been committed, is the priority to get medical help or a conviction? Will the Minister ensure that some clarity is provided to the Garda Commissioner in this regard for the implementation of the legislation by members of the Garda?

Mr. Brennan

The section is laid out in such a way that, if a person fails a breath test, they are required to give samples under medical supervision. In the event that they refuse to give a breath test, they are committing an offence. Is that the point the Deputy makes?

Mr. Naughten

The point I make is that, if somebody is injured or concussed in a road traffic accident, there needs to be a procedure in place for gardaí to use their discretion. I accept that they have discretion in whether a breath sample should be taken at the time. When the legislation is being circulated by the Garda Commissioner to members of the Garda Síochána, it should be pointed out that they will need to use their discretion in this regard.

Should a higher priority be put on getting medical attention for someone or on getting a conviction? It needs to be pointed out that gardaí need to ensure that there is such discretion. Senior members of the Garda will use their discretion but younger members of the force eager to get convictions might prioritise a conviction over the health or safety of an individual.

Mr. Brennan

Section 15 of the 1994 Act deals with the case where a person is admitted to hospital. The legislation permits a sample to be taken at that point. It covers some of the points the Deputy made. Gardaí will have discretion under the legislation to prioritise in the way that the Deputy suggested. If somebody clearly needs urgent medical attention, then that is the priority and gardaí will be expected to use their discretion in that regard. The legislation lays the duty on gardaí if they form an opinion to proceed on the breathalisation route under these headings but, in my view, the personal safety of the individual would take precedence.

Mr. Naughten

I accept that the legislation provides for discretion. The point I make is that it should be pointed out to gardaí that this discretion exists.

Mr. Brennan

We will pass that on to the Garda Commissioner. Guidelines are generally drawn up for gardaí on legislation and we will include this point.

Question put and agreed to.

Sections 3 and 4 agreed to.

Acting Chairman

Amendment No. 6 in the name of Deputy Naughten is ruled out of order as it is outside the scope of the Bill.

Mr. Naughten

Perhaps the Minister will inform us of when he intends to enforce that section or introduce relevant legislation?

Acting Chairman

Strictly speaking, it is outside the scope of the Bill. Perhaps the Minister will reply to the Deputy at a later stage.

Mr. Naughten

God loves a trier.

Amendment No. 6 not moved.

Section 5 agreed to.

Title agreed to.

Bill reported without amendment and received for final consideration.

Question proposed: "That the Bill do now pass."

Minister for Transport (Mr. Brennan)

I thank Members for passing the legislation which now goes to the Seanad. In the weeks ahead in particular and after, the legislation will greatly enhance the powers of the Garda. I again thank the House for facilitating the legislation at short notice.

Dáil Éireann díospóireacht - Thursday, 27 Nov 2003