Random Breath Testing - what is the story?

Seth Brundle

There seem to be conflicting stories about this - what is the exact situation?
Is the current situation still the same as before whereby the gardai can only breath test a driver if they have formed an opinion e.g. after an accident or at a checkpoint.
Can a garda walk up to any driver and ask them to blow into the bag?
There was recent discussion that the idea of stopping a driver was unconstitutional - has this changed? There was also a recommendation about including a referendum on the issue sometime. Is this idea defunct now?


*** not that I ever DUI ***

seamus

I'm not entirely sure. I imagine the idea is to set up checkpoints, where they randomly pull drivers out of the traffic and breathalyse them. I can't see pulling random people over and testing them to be efficient (or legally safe - imagine the court case when someone loses his job cos his boss saw him being breathalysed on the side of the road).

What I'm a little more concerned about is the process in dealing with positive tests. Mouthwash, for example, sometimes contains alcohol and can easily result in a false positive if the test is carried out soon after gargling. Likewise, what if someone eats a liqueur chocolate in the car (have some at home meself, lovely but strong), and seconds later is pulled at a checkpoint?
Is a positive roadside breath test sufficient proof to have one charged and tried, or is it only sufficient to arrest a person and bring them to the station to obtain a blood/urine sample?

Gurgle

kbannon wrote:

Can a garda walk up to any driver and ask them to blow into the bag?

AFAIK:
Under the old legislation, the garda had to have some reason to believe you may have consumed alcohol, e.g. inconsistant driving, falling over etc. You would be cautioned first then asked to blow in the bag.
Now they dont have to have a prior reason to think you've been drinking. You blow in the bag first then you're arrested or let go based on the results.

Or to put it another way, it cuts down on a bit of pointless paperwork while making no difference to anything else

Gavin

Well, it's not really random breath testing at all. It's a completely misleading name. What they have done is effectively done away with the need for ' a garda to form an opinion'. There is no random element whatsoever to the stopping.

Gav

MrPudding

Going on experience in the North they would setup a checkpoint. Typically they would stop all cars unless the driver was wearing a sash or a bowler hat (only joking.) They would have a quick chat and typically let most people on their way. I they smelt booze or suspected for soem other reason someone had had a few they would pull them to the side of the road and get them to blow in the bag. Actually, it's not a bag anymore it a machine.

If this test is positive the person is arrested on suspicion of driving while under the influence and taken to the station where a blood or urine test will be carried out by medical professional. My understanding is that if this test is positive it goes from suspicion of being inder the influence to being under the influence.

To me it seems like an OK way to do things. Mouthwash or sweeties will not cause you to fail a blood or urine test and I don't think you can be prosecuted simply on a breath test.

MrP

Seth Brundle

so according to Gurgle and Verb, the laws were actually changed?
Was any reason given as to why before Christmas we were told that the AG says it requires a referendum and after Christmas it doesn't?

smashey

Why was it that the Gardai needed a reason before being able to breathalyse somebody while they (and the customs) could pull over any diesel vehicle and dip it. Now which act causes the more mayhem and which creates the most revenue? Also if the Guards were to sit outside some rural pubs in my area and watch people come out of the pubs and drive off in their cars then wouldn't this give them the reason they needed. "Excuse me sir bit I saw you leave a pub and have reason to believe you are driving under the influence". Surely that couldn't be argued with.

Alun

It's still a bit unclear to me, I must say. The whole "forming an opinion" bit was always a bit subjective, I thought, and was open to whatever interpretation the Gardai wanted to put on it, so I can't really see why that was a hindrance.

There was a Guard on the TV a while back claiming that the only way they could stop people was if they were actually observed driving erratically, and that even if they had been, say, stopped at a checkpoint and the inside of the car smelt like a brewery, they still couldn't breathalyse the driver. And according to what some posters here have said, it isn't even standard practice (like it is practically everywher else) to breathalyse anyone involved in a RTA.

Seth Brundle

I dunno about that Alun - last saturday I was stopped (twice) on Infirmary Rd. in Dublin when I was dropping friends home.
The first time I was stopped the garda stuck his head literally in the window to see if the back seat passenger was wearing a seat belt. He would have easily gotten a whiff of drink off my breath had one been there.

MrPudding

Alun wrote:

And according to what some posters here have said, it isn't even standard practice (like it is practically everywher else) to breathalyse anyone involved in a RTA.

That can't be right, is it?

I have heard a few people talking about this over the past few weeks. It seems that initially it was though that it may be unconstitutional but the AG had a think about it and decided it would not be. I would imagine that should it be brought in it will be rigorously challenged in court.

On the subject of waiting outside a pub. Apparently the reason is (this is not from me but a senior Guard that was on Newstalk a couple of weeks ago) they could be accused of victimising the patrons of the pub they waited outside. Basically, why are you waiting outside this pub and not the one in the next town over. Fcuking stoopid IMO but there you are.

MrP

antoinolachtnai

Well, if the testing is truly random they may be able to make a constitutional case for it. If they are just going to be able to pull cars over without any reason, then there is going to be a Problem.

Seth Brundle

antoinolachtnai wrote:

Well, if the testing is truly random they may be able to make a constitutional case for it. If they are just going to be able to pull cars over without any reason, then there is going to be a Problem.

Easy grounds for victimisation - just tell the judge that the garda had stopped you every time he saw you.

antoinolachtnai

It isn't illegal for the garda to do that with regard to diesel, for example. Victimisation is hardly good practice, but I don't think it's illegal for a garda to do this. (I am open to correction on this, but I would be surprised.)

It simply wouldn't be a defence to say that the Garda stopped me every night on my way home and sure he was bound to catch me drunk sooner or later.

On the other hand, if you said the search was unlawful because it wasn't random and wasn't with cause, then there would be a real problem.

(As I understand it, and to answer the original poster's question, there still has to be cause.)