I move amendment No. 17:
In page 13, subsection (1)(a), line 6, to delete “is of opinion” and substitute “suspects”.
This is a key section which relates to the obligation to provide a preliminary breath specimen when requested by a member of the Garda Síochána. The amendment proposes that in section 8(1), a member of the Garda Síochána should suspect rather than be "of opinion" regarding a person in charge of a vehicle in a public place. Amendment No. 19 proposes to insert the word "or" after the words "has consumed intoxicating liquor".
The amendments and use of the term "is of opinion" are at the core of the Bill. Mandatory testing is the key new sanction introduced in the legislation. On Second Stage we discussed at length the role of alcohol in serious and fatal road collisions. A study carried out by Dr. Declan Bedford was mentioned. Dr. Bedford's study showed that alcohol was a factor in 37% of fatal collisions. It was a contributory factor in the case of 42% of drivers who died and 34% of the drivers studied were over the legal alcohol limit. The study also found that only 8% of surviving drivers were tested for alcohol, while 65% of drivers who died were tested. The study is entitled, The Role of Alcohol in Fatal Collisions in Ireland 2003 to 2005.
It was through the wonderful campaign of the PARC organisation that my attention was drawn to Dr. Bedford's important research. PARC and other campaigners have highlighted many cases involving fatal collisions where the person killed tested negative for alcohol whereas the driver of the other vehicle, the person who allegedly caused the crash, was not tested at the scene and it could not be determined or proven in court that the surviving driver had been negligent or over the limit. PARC, which has given wonderful support to Opposition parties on this issue, has shown clearly that the use of the phrase "is of opinion" or "forms an opinion" is highly problematic and will lead to considerable difficulty. It could also result in further cases of people who flagrantly break the law by driving a car while intoxicated and killing someone getting way without a test.
As I indicated, this is one of the most important Bills passed in the history of the House. If we get this right, in three or four years when reminiscing about this Dáil, we will be able to state that people who would otherwise have been killed in road traffic accidents are alive because of the action we took in adopting this legislation. I ask the Minister to grasp the nettle and introduce mandatory testing for all collisions. Let us follow the route adopted by many other countries, including many of our European Union partners, and Northern Ireland, which recently passed legislation on this matter.
The use of the phrase "is of opinion" will not facilitate the introduction of mandatory testing and should, therefore, be dropped because it places an excessive legal burden on the Garda Síochána in requiring that a garda be sure a driver has transgressed and be in a position to justify forming this opinion. The use of the term will also continue to allow discretionary powers which do not have any place in a mandatory testing system. As I argued on Second Stage, why does the Minister not simply mandate the testing of all drivers who have been involved in a collision to which the Garda is called?
A couple of years ago, the Northern Ireland authorities introduced legislation in which testing was mandated in cases where there was "reasonable cause to suspect" that a driver had consumed alcohol. My party's barristers advise me that the use of the word "suspects" in this case is the best way to proceed. It would allow slight flexibility to a garda in the case of a minor collision in which no one is injured. The central issue, however, is the testing of intoxicated drivers who have been involved in a collision in which a person has been seriously injured or killed.
A driver's intoxication through alcohol or drugs may not always be clearly apparent to another person, especially if people are injured and there is a chaotic crash scene. People who have been involved in a reasonably serious collision, including some of those present, will understand what type of circumstances prevail at the scene of a collision.
During discussion and consultations on the Bill, the Minister gave a commitment to PARC that wording such as "of opinion" would not be used and specific testing powers such as those available in Northern Ireland would be used. Speaking about random breath testing to this committee in 2006, former Garda Commission, Noel Conroy, stated: "If we had continued with the system whereby a garda had to form an opinion before undertaking a breath test, a certain proportion of the people who were arrested recently would have slipped the net." In 2005, when we amended legislation to change the position on random breath testing Commissioner Conroy strongly commended the action of the then Minister, Deputy Martin Cullen. In the United Kingdom, our nearest neighbour, police are under instruction to test all drivers for alcohol at collision scenes. I examined the position in a range of European countries, including France and Poland. We spoke before about Australia and have been studying it recently because there have been a number of tragic collisions there involving Irish citizens who emigrated thereto recently during the recession. The Australians have mandatory testing. The 2008 European Commission recommended giving the police "unrestricted powers" to breath test. I ask the Minister to reconsider this matter and restore the formula that obtained in regard to random breath testing. He should answer the pleas of PARC, which has campaigned heroically for this legislation, and introduce mandatory testing where there are collisions involving serious injury and death. That should be the way forward. This is the nub of the Bill and I, therefore, ask the Minister to accept amendment No. 17.
