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Section 12 Road Traffic Act 1994 Preliminary Breath Testing-Garda Opinion

  • 25-10-2010 12:24am
    #1
    04181610
    Closed Accounts Posts: 1 ✭


    Just wondering if anyone has information (cases, articles etc...) on section 12 of the Road Traffic Act 1994, which deals with preliminary breath testing on the roadside. The legislation states that 'whenever a member of the garda siochana is of the opinion that' a person has committed a road traffic offence, has been involved in a traffic accident or is of the opinion that the driver had consumed alcohol the garda can breath test the driver.

    Take for example the following hypothetical situation: A garda stops a driver for not having a valid tax disc, the driver admits immediately to having no tax, shows the garda his driving licence and then the garda proceeds to take the details from the licence while informing the driver that he will receive a fixed penalty notice. The garda then goes to hand the driver back his licence, but when the driver puts out his hand to take the licence, the garda percieves it as an act of aggression or lack of respect and shouts at the driver 'what do you think you are doing, get back here now...' (meaning to leave the side of his own vehicle and go to the side of her garda vehicle). The driver asks what the matter is but she proceeds to the garda car and produces the breath testing kit and says 'Under section 12 of the Road Traffic Act...' and tells the driver to blow into the apparatus. The result is that the driver has not taken any intoxicating liquor and the garda says 'now thats what you get for being aggressive...' before telling the driver to get in his car and drive away.

    My question is whether there is any requirement on the garda in such a situation to enquire as to whether the driver has consumed alcohol before invoking section 12 and furthermore what 'evidence' is needed before the garda can be of the opinion that a person may have consumed alcohol. There was such an uproar about mandatory breath testing that I find it odd that a garda could invoke section 12 without any apparent reason whatsoever...


Comments

  • #2
    detective
    Registered Users Posts: 444 ✭✭detective


    04181610 wrote: »
    The legislation states that 'whenever a member of the garda siochana is of the opinion that' a person has committed a road traffic offence, has been involved in a traffic accident or is of the opinion that the driver had consumed alcohol the garda can breath test the driver.

    Take for example the following hypothetical situation: A garda stops a driver for not having a valid tax disc, the driver admits immediately to having no tax,

    In this case it is perfectly legal for the Garda to invoke Section 12 as the driver has no tax. There is plenty case law on Section 12, some of it very interesting.


  • #3
    Finnbar01
    Registered Users Posts: 2,064 ✭✭✭Finnbar01


    detective wrote: »
    In this case it is perfectly legal for the Garda to invoke Section 12 as the driver has no tax. There is plenty case law on Section 12, some of it very interesting.


    Is it also true that the garda can seize your car if you have no tax?


  • #4
    Hooch
    Registered Users Posts: 4,957 ✭✭✭Hooch


    04181610 wrote: »
    My question is whether there is any requirement on the garda in such a situation to enquire as to whether the driver has consumed alcohol before invoking section 12 and furthermore what 'evidence' is needed before the garda can be of the opinion that a person may have consumed alcohol. There was such an uproar about mandatory breath testing that I find it odd that a garda could invoke section 12 without any apparent reason whatsoever...

    Firstly in regards the tax.......no tax is a finance matter and covered by the finance act so you cannot breath test someone. Non display of a tax disc is a RTA matter and you can breath test for that (just setting the scene for how good our laws are)

    There is no requirement for a Garda to ask you anything, if he does he must legally caution you in accordance with judges rules but thats another matter. Sticking with the opinion only, leaving out the rest of Section 12, the Garda's opinion is formed by them and cannot really be questioned.....as its their opinion. The smell of an intoxicant can be enough to form an opinion that alcohol has been consumed.
    Finnbar01 wrote: »
    Is it also true that the garda can seize your car if you have no tax?

    Yes, once the tax has expired by two full months.


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