Law question for solicitor or student

100gSoma

hi

I have a friend who was stopped for suspicious driving last year. He gave a urine sample at the garda station and was found to be just under the legal limit. He heard nothing more. Then he got a summons because the gardai sent the urine sample off for the 'full test' and found he had cannabis in his urine.

What is the law in this area? how do you measure amounts of cannabis in urine, and what is the law regarding driving with traces of it in your urine? Is it wholly illegal full stop? any levels of it? even passive? I feel he may be disqualified.
Anyone have any experience or stories in this area?

thanks

100gSoma

all I can really find is this. Seems like a very gray area... like it would come down to the garda opinion whether you were in control of the vehicle...

The main law in this area is the Road Traffic Acts 1961 – 2002, and
specifically section 10 Road Traffic Act (RTA) 1994, which forbids
driving in a public place while a person "is under the influence of an
intoxicant to such an extent as to be incapable of having proper
control of the vehicle". Intoxicant is defined to include alcohol,
drugs, or any such combination. There is thus a limit of impairment,
and the law does not distinguish between specific drugs.

Tests can only take place following suspicion.
All offences are heard in the criminal court. They would result in
licence suspension and the driver is liable to a fine not exceeding
€1270 or up to six months' imprisonment or both. Licence suspension
would be not less than 2 years in the case of a first offence and not
less than 4 years in the case of a second or any subsequent offence
under the same section.

grumpytrousers

Usual caveats apply re: taking advice from here, etc...

AFAIK, if the gardai suspect somebody of, say, drink driving they have to go thru the process of

a) stopping the person
b) quick conversation, just to check state of glassy eyes, slurred speech, smell fo drink
c) form opinion that person is driving under affluence of incohol
d) state that such an opinion has been made and that under whatever section they require you, xyz, to come to the stateion to provide a sample
e) (normally) bring person to station to make them take the test, be it urine sample, blood, breath.

In other words, the sample (at e) tends to be given on foot of a suspicion that the person is drunk, or whatever.

I wouldn't be too sure that the gardai can bring somebody in on suspicion of being langers, find that they're not, and then do them for something else. I.e. if the Guard had said (at c) "I think you're stoned and in charge of a vehicle" the procedure would be okay.

I'm not fully answering your question (in fact, hardly answering it at all) but it might be worth your friends while having a chat with somebody who does this for a living!

Eru

100gSoma wrote:

What is the law in this area? how do you measure amounts of cannabis in urine, and what is the law regarding driving with traces of it in your urine? Is it wholly illegal full stop? any levels of it? even passive? I feel he may be disqualified.

This is a stupid question for starters. Cannabis is illegal so how in gods name would there be a legal amount in his system? This isn't alcohol were talking here. He was found with drugs in his system when he was driving so hes guilty and yes he will be banned but for gods sake, he was drinking and doing drugs, can you defend this persons right to continue driving?

grumpytrousers wrote:

c) form opinion that person is driving under affluence of incohol

grumpytrousers wrote:

I wouldn't be too sure that the gardai can bring somebody in on suspicion of being langers, find that they're not, and then do them for something else

We dont, we form our opinion that he has consumed an intoxicant as per the wording under Section 49 (1 - 4) which covers alcohol and drugs.

I think the fact the Garda used a doctor for blood and not the intoxilizer machine means he believed that drugs were the intoxicant more than alcohol.

100gSoma

Karlitosway1978 wrote:

I think the fact the Garda used a doctor for blood and not the intoxilizer machine means he believed that drugs were the intoxicant more than alcohol.

As far as I know he refused the breath test, and gave a urine sample. no blood sample taken.

Thanks for your reply btw Grumpy, it was helpful.

100gSoma

Karlitosway1978 wrote:

This is a stupid question for starters. Cannabis is illegal so how in gods name would there be a legal amount in his system? This isn't alcohol were talking here. He was found with drugs in his system when he was driving so hes guilty and yes he will be banned but for gods sake, he was drinking and doing drugs, can you defend this persons right to continue driving?

Firstly, its not helpful to label a question stupid. And why on earth are you asking if I can "defend this persons right to continue driving?". Maybe you should read my question again and actually think about what your reading. Im not trying to defend anything, Im asking a legal question.

The area I raised is very gray with no clear lines drawn. You seem to imply anyone having cannabis in their system is guilty of an offence as its illegal. Im afraid its not quite that simple.

Off topic for second, Im completely fed up with the amount of people on boards who use any post they disagree with to try and bait or flame the OP. It doesn't make you look big or clever. Just like an ineffective polemicist.
I have no idea why people do this, but its on the increase

Eru

100gSoma wrote:

As far as I know he refused the breath test, and gave a urine sample. no blood sample taken.

Refusing the breath test is an automatic fail which carries the maximum sentence so I doubt thats what happened. You cant just refuse and get away with it.

My bad over the blood/urine but its more or less the same.

Oh and having an illegal substance in your system is black and white. Its illegal to take drugs and drive, simple. Its not illegal to drink therefore the limit.

And its also against board rules to seek advise so be careful about that.

dbnavan

Not that I agree with it but...

News > 25 Jan 2006

Garda authorities withdraw directive on cannabis offences
(Source:'Controversial directive on cannabis offences withdrawn': Irish Independent , 25 Jan 2006)

Garda authorities last night countermanded the controversial directive issued last week that a person caught in possession of cannabis for personal use should be cautioned, rather than brought to court.


The new directive issued to superintendents nationwide removed cannabis use from the list of minor offences that can be dealt with by a caution. The initial order was issued following the recommendation of a working party drawn from the DPP's office and the Garda authorities, and was due to come into force from next Wednesday, 1 February. Details of the controversial directive were leaked at the weekend. The issue will now be the subject of further talks between DPP, Garda and Department of Justice personnel

100gSoma

Karlitosway1978 wrote:

And its also against board rules to seek advise so be careful about that.

thanks for the heads up K. I was simply asking if anyone had any "similar stories or experiences" I'm not seeking legal counsel etc.

I think an outright refusal is the maximum sentence, but you can choose to give urine or blood in leiu of breath test. Also, If you tell a guard you were drinking within the last 30 minutes they cannot use the breathalyzer as its not accurate.
I admit though, Im not 100%, I just know he didn't give the breath test because he seemed to think he could "buy more time" giving a urine test.

I take your point about black and white with drugs in the system. Sometimes I have been in the company of those who smoke (I don't) so I wonder about the risk of being charged for having 'passive' traces of cannabis in your system. Anyway, I will post here when I know the outcome. Apparently the solicitor is in touch with a barrister who deals specifically in these circumstances.

hullaballoo

100gSoma wrote:

thanks for the heads up K. I was simply asking if anyone had any "similar stories or experiences" I'm not seeking legal counsel etc.

You said it!

Eru

100gSoma wrote:

I think an outright refusal is the maximum sentence, but you can choose to give urine or blood in leiu of breath test.

Only on medical grounds and if the doc doesnt back your story then its a failure/refusal. Asthma verified by doctor or similar, yeah thats fine.

100gSoma wrote:

Also, If you tell a guard you were drinking within the last 30 minutes they cannot use the breathalyzer as its not accurate.

Again the dangers of amateur lawyers and Chinese whispers. You are not marched into the room and tested straight away. You are observed for 20 (not 30) minutes by the Gardai and then tested so you cannot claim to have smoked or drank within that time. Seriously, if it was that simple would anyone ever be tested????

100gSoma wrote:

I admit though, Im not 100%, I just know he didn't give the breath test because he seemed to think he could "buy more time" giving a urine test.

He stood a better chance of getting away with it by taking the intoxilizer test. That allows for a higher level before being guilty. Blood/urine does not.

100gSoma wrote:

I take your point about black and white with drugs in the system. Sometimes I have been in the company of those who smoke (I don't) so I wonder about the risk of being charged for having 'passive' traces of cannabis in your system. Anyway, I will post here when I know the outcome. Apparently the solicitor is in touch with a barrister who deals specifically in these circumstances.

I wouldnt worry too much about passive smoking but you are in the company of technical criminals and while I would never suggest a person not defend themselves adequately this is one area that gets tested and fought daily which means the regulations, etc are very tight and like I said before, the Gardai are well versed. I would not hold much hope for your friend.

100gSoma

Karlitosway1978 wrote:

He stood a better chance of getting away with it by taking the intoxilizer test.

I would not hold much hope for your friend.

yep I agree re: first point.

nope, I don't. I think he will be disqualified. In my opinion the right thing. Personally I have no tolerance for people who drink and drive. none.

dbnavan

No answers yet to my reply which is evidence he should be in the clear, IMO

grumpytrousers

dbnavan wrote:

No answers yet to my reply which is evidence he should be in the clear, IMO

your reply makes no mention of what the attitude of the Gardai is to folks in charge of cars who happen to have ingested the drug. I'd say *most* of what Karlitosway1978 has said remains standing...

Just as a matter of interest, and K1978 might be able to answer, say our hypothetical friend here smoked a joint at midday, and is stopped at 6 in the evening. How long does the drug stay in the bloodstream and how long does it stay in the urine? I mean, and without condoning the behaviour, isn't there surely a situation where a person is no longer under the effects of the drug and it is pretty much on its way out of the system such that 'doing them' is perhaps unfair?

sportswear

"This is a stupid question for starters. Cannabis is illegal so how in gods name would there be a legal amount in his system? This isn't alcohol were talking here. He was found with drugs in his system when he was driving so hes guilty and yes he will be banned but for gods sake, he was drinking and doing drugs, can you defend this persons right to continue driving?"


^stupid statement^

alcohol is a drug.

it is not illegal to have cannabis in your blood.

that plasma half life of cannabis is 7 days. this means it is possible for him to have consumed it and for it to have shown in his blood from anywhere up to 30 days before ( standard blood test). it depends on the LEVEL they found in his system. to be honest this case will be thrown out.

there is no way they can prosecute someone on this sort of evidence. THC levels, due to their lipid soluble properties and variable composition can't really have their timelines measured as accuratly as say alcohol.

HaroldS

Cannabis can stay in ur system for up to 7 weeks after your last smoke. How can the gards prove that he was intoxicated while driving ?

sportswear

" 7 weeks"


what do you base this on - and what kind of blood test?

---

edit

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sorry actually this is leading things off topic.

the_syco

Karlitosway1978 wrote:

This is a stupid question for starters. Cannabis is illegal so how in gods name would there be a legal amount in his system? This isn't alcohol were talking here. He was found with drugs in his system when he was driving so hes guilty and yes he will be banned but for gods sake, he was drinking and doing drugs, can you defend this persons right to continue driving?

IIRC, cannabis is dectable in your urine for up to 4 weeks.

Also, even though cannabis is illegal, I think its a gray area on how much cannabis can be in your system before its deemed "unsafe" to drive.

Finally, K1978, its been proven that you can drive better with a drink + a joint than you can with just drink.

Turner

Does not matter how much Cannabis was in his system once the Garda forms his/her opinion that the person is under the influence of an intoxicant which (in his/her opinion) rendered him incapable of having proper control of a mpv in a public place.

The man can say he had a joint five days ago, it does not matter. If the Garda has formed his opinion based on his driving (obviously why he pulled him over) and results from the medical bureau indicate the presence of cannabis in his system, these are the required proofs for a successful prosecution.

dbnavan

Possession of controlled drugs - cannabis or cannabis resin (from oasis.gov.ie)

Under the Misuse of Drugs Act, 1984, anyone found in possession of cannabis or cannabis resin is guilty of an offence. If the court decides that the drug was for personal use and not for sale or distribution and this was a first offence, it can impose a fine not exceeding 381 euro on summary conviction in a District Court. On conviction on indictment, the defendant can be fined 635 euro. For a second offence, a fine not exceeding 508 euro may be imposed and on conviction on indictment, a fine of 1,270 euro can be imposed. For a third or subsequent conviction, a fine not exceeding 1,270 euro can be imposed. If the court decides, a prison sentence of not more than 12 months can be imposed as well. On conviction on indictment, the court may decide on an appropriate fine and/or a prison sentence of up to three years can be imposed.

Eru

grumpytrousers wrote:

Just as a matter of interest, and K1978 might be able to answer, say our hypothetical friend here smoked a joint at midday, and is stopped at 6 in the evening. How long does the drug stay in the bloodstream and how long does it stay in the urine? I mean, and without condoning the behaviour, isn't there surely a situation where a person is no longer under the effects of the drug and it is pretty much on its way out of the system such that 'doing them' is perhaps unfair?

Good point Grumpy.

the_syco wrote:

Also, even though cannabis is illegal, I think its a gray area on how much cannabis can be in your system before its deemed "unsafe" to drive.

Its an illegal substance and having it in your system is enough. remember that when dealign with drugs even legal over the counter drugs can result in prosecution. In effect the law allows that any amount of a mind altering substance renders you incapable of driving. thats why there are limits for acohol but no limits for drugs. Any amount is enough, even drowsy cough syrup could get you charged (in fact i believe this happened).

navan,
Please explain your stance. Stating that you cannot get a caution for simple posaesion has no bearing on this topic. Neither does it state that the offence is not an offence. you are stating that drug possesion for personal consumption is a crime, what is your point?

GilGrissom

The presence of cannabis in urine would prove nothing. It would have to be in the blood to prove intoxication. A person would only have to be in a room with a cannabis user to have traces show up in the urine.

Eru

GilGrissom wrote:

The presence of cannabis in urine would prove nothing. It would have to be in the blood to prove intoxication. A person would only have to be in a room with a cannabis user to have traces show up in the urine.

:eek: Would you care to explain this and compare it too Section 49, Road traffic Act 1961/2001????? Sounds like a wild myth too me.

If its in your urine then its in your system. How and why its there isn't an issue. In fact urine is the main method used for drug tests.

grumpytrousers

Karlitosway1978 wrote:

:eek: Would you care to explain this and compare it too Section 49, Road traffic Act 1961/2001????? Sounds like a wild myth too me.

If its in your urine then its in your system. How and why its there isn't an issue. In fact urine is the main method used for drug tests.

Yeah...i'm no medic, but the presence of, say, waccy baccy in the urine will prove that 'at some point in time the person in question partook of something which is forbidden'...I'd contend that it *doesn't* neccessarily prove that 'this person is completely off their tits'. Now the person might be , but it's the crap a-coursing through the veins that are surely having the effect, not what's in the urine...innit? That's kinda what i'm trying to say - presence in the urine implies that it's been thru the kidneys (effectively having 'left the bloodstream') and that it's on the way out. Now, and this goes back to me original question - if i take a joint on monday, and it takes 7 weeks to completely exit my system, and say, for arguments sake, i'm driving my car 2 days later and trying to retrieve the change for a toll bridge from my arse pocket which causes a wee swerve and a modicum of erratic driving which is noticed by a vigilant garda patrol who stop me and get no whiff of booze off me

If the gardai decide to investigage and 'to be sure to be sure' take a urine sample, am I, for want a better way of putting it, up the creek...

GilGrissom

I can't ever imagine that such a case would lead to a conviction unless a blood test was used. It would be far to easy with medical expert witnesseses to explain away the presence in urine of cannabis.

Eru

GilGrissom wrote:

I can't ever imagine that such a case would lead to a conviction unless a blood test was used. It would be far to easy with medical expert witnesseses to explain away the presence in urine of cannabis.

urine is used in drug driving prosecutions all the time Gil, doctors would not take urine if it was not accepted in court and to finish, S49 would have been amended at this stage if there was case law concerning this matter.

I have personally witnessed prosecutions using urine tests for drugs (cannabis in this case). remember that it is not just the presence but also the Guards opinion of the driving and any other factors.

mountainyman

I am sure that if you were being done for dangerous driving they could introduce the p1ss test.

The judge'd hammer you.

MM

grumpytrousers

Karlitosway1978 wrote:

urine is used in drug driving prosecutions all the time Gil, doctors would not take urine if it was not accepted in court and to finish, S49 would have been amended at this stage if there was case law concerning this matter.

I have personally witnessed prosecutions using urine tests for drugs (cannabis in this case). remember that it is not just the presence but also the Guards opinion of the driving and any other factors.

I'll have me change for the toll bridge in the shirt pocket then...:D

Victor

I was at a road safety conference last week and Karlito is right the test any drug and any impairment (including fatigue) can have you convicted.

Perhaps unfair at the margins, but they have to draw a line somewhere.

There's a funky new machine available that measures your eye's response to visual stimulus. Its a perfect test for screening (rated at 95-100% accurate), but would need secondary testing for confirmation.

NUTLEY BOY

Here is what S. 49. RTA 1961 says ;

49.—(1) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle.

(2) A person who contravenes subsection (1) of this section shall be guilty of an offence and shall be liable on summary conviction to imprisonment for any term not exceeding six months or, at the discretion of the court, to a fine not exceeding one hundred pounds or to both such imprisonment and such fine.

(3) Subsection (1) of section 1 of the Probation of Offenders Act, 1907, shall not apply in relation to an offence under this section.

(4) Where a member of the Garda Síochána is of opinion that a person is committing or has committed an offence under this section, he may arrest the person without warrant.


The urine test proves the presence of the intoxicant. The Garda's observations provide the evidence on the question of control.

However, how do the Gardai establish that the level of intoxicant would have been causative of the impairment ? I suppose this is what the earlier oxymoron about the "legal" level of the intoxicant was referring to.

I assume that this has to be proven beyond all reasonable doubt ?

Incidentally, in this sort of case does the accused have a split sample portion given to him ? If so, I suppose he could have it analysed and then get a toxicologist to testify if he believes the levels found were so small as to be incapable of explaining whatever conduct aroused the garda's suspicion !

Turner

The sample is divided in two by the doctor and the arrested person offered either sample.

As for the the intoxicant having an effect on the persons driving, this is solely down to the Gard's opinion, the gardai may also take a report from the designated doctor.

This is rarely done, maybe in serious cases (fatal accidents or where the person will receive a jail sentence)

If the Gard forms his opinion by observing driving, observing the person at the side of the road.

If the persons eyes were glassy, unsteady on their feet, not speaking coherently etc etc.

seamus

Remember folks that convictions are rarely secured on a single piece of evidence. The idea is to prove beyond reasonable doubt that a person is guilty.

A urine test alone, would not be sufficient. As has been pointed out above, cannabis, among other drugs, could be present in urine for many weeks after having consumed it. A positive urine sample alone would not prove, beyond reasonable doubt, that a person "is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle".

However, a statement from the Garda as to his observation of the defendant's driving and his behaviour at the roadside, coupled with the evidence that the defendant's urine tested positive for cannabis, could very easily serve as sufficient evidence that the person was "under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle".

All the evidence in the world which said that you hadn't enough cannabis in your system to impair your driving wouldn't be enough. The Garda was of the belief that you were intoxicated, and you tested positive for cannabis.

Our man in Havana

Has any case of this type ever went before the high court or supreme court?

Turner

Loads of case law on this but i havent seen it online.

Has anybody here any links to online case law.

chipper

they can only use the urine sample in court if they took 2 samples (A) (B) they then must give the defendant the choice of taking sample A or B for their own defence purposes, if only one sample was taken, or 2 samples taken and the defendant not given the "choice" of which to take for themselves then there is no case.

Turner

The Doctor divides the sample the person provided into two and offers them the choice of either.

If they take one the other is sent for analysis. If they dont take one the two are sent for analysis.