Random breath testing hits legal roadblock

DonJose

Just great, how many drink driving scumbags will jump through this loophole.

"A WOMAN'S arrest for drink driving was unlawful because the garda involved only had oral authorisation to set up a checkpoint.

Written approval for gardai to set up any random breath test checkpoint is "an essential feature" of the law, a judge said yesterday.

Mr Justice Iarfhlaith O'Neill gave the judgment after Judge John Brophy had asked the High Court to rule on a case in which a garda had given oral evidence saying he had an inspector's authorisation to set up a checkpoint.

District Court Judge Brophy also asked the High Court to decide whether he was entitled to convict a woman motorist at the centre of the case.

She was convicted, fined €500 and banned from driving for a year by Judge Brophy.

Unlawful

But yesterday the High Court ruled that, without the written authorisation, the motorist's arrest was unlawful.

During the District Court hearing, the judge was told that when she was arrested and tested at a garda station, she had a reading of 48 microgrammes (mg) of alcohol per 100 millilitres of breath -- which is 13mg over the legal limit for alcohol.

In his judgment yesterday, Mr Justice O'Neill said he was satisfied that in this case, where there were no exceptional circumstances, that written authorisation was a necessary proof for establishing a checkpoint.

The judge found oral evidence that authorisation had been given to set up such a checkpoint was not sufficient under the 2006 Road Traffic Act -- which brought in random breath testing.

Arresting

The Act states that a member of the garda, not below inspector rank, shall provide authorisation for a checkpoint "in writing".

It must specify the date, place and hours within which it is to be operated.

Without proper authorisation, any subsequent evidence obtained by the arresting garda was in breach of the motorist's constitutional rights and her arrest was unlawful, the judge said.

It is not yet known how many drink driving convictions could be in jeopardy or affected by yesterday's High Court ruling.

The Irish Independent has learned that several District Court convictions have been appealed by motorists who have complained that their arrests following random checkpoints were not properly authorised."

http://www.independent.ie/national-news/random-breath-testing-hits-legal-roadblock-1443182.html

alias no.9

Oh sweet jesus, we're back to every single case being challenged in court, not because the driver was innocent, but in search of trivial procedural breaches. It's time to bring in the concept of implied consent that is used in other juristictions. By chosing to get in a car, you are implicitly consenting to provide a breath sample should you be asked by a garda. If you don't want to give a breath sample, you don't get behind the wheel, simple as.

Vertakill

Do you think this would be the same for checkpoints looking at tax/nct/vrt etc?

vectra

About time someone stood up to the "Uniform"
Some of those guys think that the minute they put on a uniform they automatically become "Dirty Harry" and hold the God given right to do what they like.

Dont get me wrong.
I think it is a disgrace for anyone to get behind the wheel after alcohol.
But,
Fair is fair.

Next thing they need to do is to stamp out the "Crouching Garda Hidden Camera" gang. Hiding in ditches to try and nab someone doing a few miles over the limit.. What is it they call it in the States? "Entrapment" or something along those lines

Zube

If the Government/Dáil wanted to allow any guard to randomly breath test anyone they liked anywhere, they could have written the law that way. They didn't. The law lays out the conditions under which a random breath test is allowed, and the guards didn't follow them.

Case dismissed.

peasant

Zube wrote: »

If the Government/Dáil wanted to allow any guard to randomly breath test anyone they liked anywhere, they could have written the law that way. They didn't.

The question is though ...why on earth didn't they ?

cabrwab

Well done to this women, in my eyes she is scum. To be miles over the limit like that is maddness.

Well done to the gardai for f*cking up another operation. Not saying they should all be dirty harry, but it seems they keeping handing people away of escaping without punishment.

This only appears to be random checkpoints, so if they suspect you of being drunk they can still pull you over!

Zube

peasant wrote: »

The question is though ...why on earth didn't they ?

The same reason the guards can't enter a building without a warrant, can't arrest someone without a warrant or direct cause, and so on. The State gives the guards certain powers, but there have to be rules to prevent abuse.

Riche670

<SNIP>


*I would like to detach myself from any suggestions of lewd insinuations as a result of the comment above.

peasant

Zube wrote: »

The State gives the guards certain powers, but there have to be rules to prevent abuse.

Where is there a potential for "abuse" in a random breath check? You're either drunk or you're not. They don't storm into your house in the middle of the night ...they check your breath by the side of the road while you're driving.

Shouldn't matter if they had written order or not.

peasant

Riche670 wrote: »

*I would like to detach myself from any suggestions of lewd insinuations as a result of the comment above.

not making the comment in the first place might also be a good idea :pac:

scab-e

This is not a loophole. The law is very clear that when a cop wants to setup a random checkpoint, he requires a prior written authorisation from an inspector. The cop failed to do this.

The law is written like this to prevent the cops from abusing their powers. For example if a cop had a grudge against someone he might 'randomly' test him whenever he saw him driving. This would not be random testing.

cabrwab

the fuzz can still pull you over everytime they see you if they wish, that they don't need a warrent/written order for that. But then your going down the whole route of harashment.

This is a stupid loophole to let people who can afford good solicatars to get them off, when they are miles over a limit.

Just saying a checkpoint should be up to the discreation of the fuzz to set up, then its less random! But if the law is there then the gardai should be following it, not letting people like this to walk

cormie

I think the garda can use their own loopholes to get around this. Why not just set up a tax check and then they can also test every passing motorist because they had reason to suspect they were over the limit (which could be any reason really). The same way they can use the drugs act as an excuse to stop and search any car without a warrant.

alexmcred

cabrwab wrote: »

This is a stupid loophole to let people who can afford good solicatars to get them off, when they are miles over a limit.

+1

Riche670

peasant wrote: »

not making the comment in the first place might also be a good idea :pac:

I couldn't resist... I just said what everyone was thinking. Censorship blows, stick it to the man and all that.

Zube

peasant wrote: »

Where is there a potential for "abuse" in a random breath check?

If any guard can check anyone he wants anywhere, anytime, without explanation, what exactly keeps it random?

Is the average Irish guard really going to check little old ladies, 18 year-old skangers, FF councillors, immigrants and priests at the same random rate?

Biro

vectra wrote: »

About time someone stood up to the "Uniform"
Some of those guys think that the minute they put on a uniform they automatically become "Dirty Harry" and hold the God given right to do what they like.

Dont get me wrong.
I think it is a disgrace for anyone to get behind the wheel after alcohol.
But,
Fair is fair.

Next thing they need to do is to stamp out the "Crouching Garda Hidden Camera" gang. Hiding in ditches to try and nab someone doing a few miles over the limit.. What is it they call it in the States? "Entrapment" or something along those lines

So a Guard catches a woman for drunk driving, and you think it's great that someone stood up to "the Uniform"? What kind of attitude is that? What did the guards do to you that you think they're all tossers?
What sort of a country do we live in where our law enforcers need permission to do their job?
Another case this morning where some peadeophile got off with just 6 months in jail. What a joke of a justice system.
What should have happened in the above case is the woman's penalty still stood and the cop get some penalty for not following procedure, like a black mark in his review or something, the same as every other company operates.

Vertakill

Biro wrote: »

What should have happened in the above case is the woman's penalty still stood and the cop get some penalty for not following procedure, like a black mark in his review or something, the same as every other company operates.

Yeah, woman should definitely not have gotten away with it. It's really a kick in the teeth for the justice system.

Just because the Guard didn't follow the exact procedure doesn't mean the woman was any less drunk/over the limit.

Joke really..

-Chris-

Woman should have still been punished appropriately, Garda should have been reprimanded for operating unlawfully.

Overturning the conviction is throwing the baby out with the bathwater.

Esel

Zube wrote: »

The same reason the guards can't enter a building without a warrant, can't arrest someone without a warrant or direct cause, and so on. The State gives the guards certain powers, but there have to be rules to prevent abuse.

Gardaí can enter a building without warrant in certain circumstances; they can also arrest without warrant.

Steve

peasant wrote: »

Where is there a potential for "abuse" in a random breath check?

The potential for 'abuse' is if the guard in question chooses where to site the checkpoint then they might leave themselves open to charges of harassment. e.g. they could target a particular road beside a particular pub more often than somewhere else. The guard would then be drawn into explaining his decision on the location as part of the prosecution. This is similar to the flaw that this legislation tried to fix - the 'forming an opinion' part was often hard to prove in court and as such many cases were thrown out because of it.

cormie wrote: »

I think the garda can use their own loopholes to get around this. Why not just set up a tax check and then they can also test every passing motorist because they had reason to suspect they were over the limit (which could be any reason really). The same way they can use the drugs act as an excuse to stop and search any car without a warrant.

If a driver is obviously drunk at a tax checkpoint then yes, they can breathalyse. If a driver appears sober (even with a faint smell of alcohol - e.g. they just had half a glass of beer), they can't breathalyse because they still need to form a suspicion that the driver is over the limit. There is no law forbidding drinking and driving as long are you are within the limit.
In fact, it's perfectly legal to chug on a beer as you drive along as long as you stay under the limit.
The other point that would get argued is if the tax and insurance discs were in order then there is no basis to detain the driver and subsequently become suspicious that they were drunk.

I know this issue is going to cause outrage but the fact remains that the law must be followed to the letter and in this case (and possibly many others) it wasn't.

The law is there to protect the innocent and prevent miscarriages of justice, unfortunately it also gives the lawbreakers a similar level of protection due to the scrutiny involved in order to deem them guilty.

Bee

peasant wrote: »

The question is though ...why on earth didn't they ?

Total incompetence of the civil service advisers or if you were cyncial vested interests in the Dail, how many publicans are TD's, now take an eyeball at party sponsorship by alcohol companies

steph1

[QUOTE
In fact, it's perfectly legal to chug on a beer as you drive along as long as you stay under the limit.[/QUOTE]

Clare_Guy

Zube wrote: »

If the Government/Dáil wanted to allow any guard to randomly breath test anyone they liked anywhere, they could have written the law that way. They didn't.

They couldn't. I distinctly remember that when this was all being debated it was said that the only way they could have "random breath test" without a constitutional referendum was the way they did, with written authorisation from a high level garda.

This is just another case of lazy arsed gardai not doing their jobs properly!

jimmycrackcorm

Clare_Guy wrote: »

This is just another case of lazy arsed gardai not doing their jobs properly!

Do you never make a mistake in your job?

Slig

jimmycrackcorm wrote: »

Do you never make a mistake in your job?

Yes but one this serious and I would be collecting my last paycheck

TheNog

vectra wrote: »

Next thing they need to do is to stamp out the "Crouching Garda Hidden Camera" gang. Hiding in ditches to try and nab someone doing a few miles over the limit.. What is it they call it in the States? "Entrapment" or something along those lines

Click on this link to learn what entrapment really is.

http://en.wikipedia.org/wiki/Entrapment

cabrwab wrote: »

Well done to the gardai for f*cking up another operation. Not saying they should all be dirty harry, but it seems they keeping handing people away of escaping without punishment.

In fairness there are many thousands of successful cases prosecuted but only a handful are dismissed.

scab-e wrote: »

This is not a loophole. The law is very clear that when a cop wants to setup a random checkpoint, he requires a prior written authorisation from an inspector. The cop failed to do this.

Vertakill wrote: »

Just because the Guard didn't follow the exact procedure doesn't mean the woman was any less drunk/over the limit.

AudiChris wrote: »

Garda should have been reprimanded for operating unlawfully.

In this case it was not the garda who failed in his duty but was actually the Inspector

SteveC wrote: »

This is similar to the flaw that this legislation tried to fix - the 'forming an opinion' part was often hard to prove in court and as such many cases were thrown out because of it.

This was the case a few years ago where it was very hard to prosecute drunk drivers with case law and loopholes being used by solicitors. However many of those loopholes are now closed and Gardai have now learned the case laws stated so it is now easier to prosecute a contested drink driving case than previous.

SteveC wrote: »

The other point that would get argued is if the tax and insurance discs were in order then there is no basis to detain the driver and subsequently become suspicious that they were drunk.

In law there is no such thing as a tax/insurance checkpoint. Only MAT and Road Traffic checkpoint. If tax and insurance checks out but it is noticed a driver has drink taken, the driver can be arrested on suspicion of drunk driving provided the necessary proofs are there and it is a laswful detention.

Clare_Guy wrote: »

This is just another case of lazy arsed gardai not doing their jobs properly!

This is simply an oversight, nothing more. It happens sometimes, even in your job too.

Slig wrote: »

Yes but one this serious and I would be collecting my last paycheck

It is the nature of the job of the Gardai. There is no other job in this country that comes close to taking a person's lawful freedom away. Again simply a mistake, we are human too.

Steve

TheNog wrote: »

In law there is no such thing as a tax/insurance checkpoint. Only MAT and Road Traffic checkpoint.

Forgive my ignorance but what is MAT?

kmart6

What a fucking joke!!!!:mad:

Turner

SteveC wrote: »

If a driver appears sober (even with a faint smell of alcohol - e.g. they just had half a glass of beer), they can't breathalyse because they still need to form a suspicion that the driver is over the limit.

Wrong

If the garda suspects that you have consumed an intoxicant (even a mouthfull of beer) He can require you to give a sample. He does not need to think that you are over the limit.

See Section 2 Road Traffic Act 2003. http://www.irlgov.ie/bills28/acts/2003/a3703.pdf

If you refuse you will be arrested and face the same penalties as being well over the limit.

TheNog

SteveC wrote: »

Forgive my ignorance but what is MAT?

In the Road Traffic Law there is no such thing as a MAT checkpoint per se. It is called Mandatory Alcohol Testing.

Dont mean to be splitting hairs but MAT is what the media began calling it so now everyone else does but in a court it must be refered to as above. The correct term must be used in court as the law is very specific so if it a Mandatory Alcohol Testing checkpoint is called a MAT checkpoint by a prosecuting Garda in court it could technically be thrown out. That's how detailed the wording must be given by the Garda when prosecuting drunk drivers.

Seems a bit OT but when a person is contesting a drunk driving charge the solicitor will pick up on any word that wasn't used by the Garda and hammer it home till the case is thrown out. In giving evidence a Garda must also say where the person was arrested and the Garda must say it was "a public place" e.g. " Main St, a public place". I have heard a few years ago cases were thrown out because the GArda did not say those three words.

kmart6 wrote: »

What a fucking joke!!!!:mad:

It is no joke and believe me the prosecuting Garda was probably just as angry at losing the case as you apparently are. A mistake was made sure but life goes on and we can only learn from our mistakes.

Alfasudcrazy

peasant wrote: »

The question is though ...why on earth didn't they ?

Its the age ol 'Irish solution to an Irish problem' - Nod & a wink - ya know youeself etc. There is no will at Government level to get tough with drink driving - Why?. Because Dail Eireann is full of Publican or publican related TD's.

Steve

Chief--- wrote: »

Wrong

I stand corrected, sorry Chief.:)

TheNog wrote: »

In the Road Traffic Law there is no such thing as a MAT checkpoint per se. It is called Mandatory Alcohol Testing.

Dont mean to be splitting hairs but MAT is what the media began calling it so now everyone else does but in a court it must be refered to as above. The correct term must be used in court as the law is very specific so if it a Mandatory Alcohol Testing checkpoint is called a MAT checkpoint by a prosecuting Garda in court it could technically be thrown out. That's how detailed the wording must be given by the Garda when prosecuting drunk drivers.

Jebus - I never realised it was that pedantic.
Having read the 2006 act, the only legally defined word is "checkpoint" (although 'Mandatory Alcohol Testing' is mentioned in the arrangement) so I would have assumed you'd refer to it as a 'checkpoint established under S4 of the RTA2006'....

....I wouldn't know though.

Biro

TheNog wrote: »

Seems a bit OT but when a person is contesting a drunk driving charge the solicitor will pick up on any word that wasn't used by the Garda and hammer it home till the case is thrown out. In giving evidence a Garda must also say where the person was arrested and the Garda must say it was "a public place" e.g. " Main St, a public place". I have heard a few years ago cases were thrown out because the GArda did not say those three words.

To be fair though, that's a classic example of a group of people so caught up in the circle of their work/life that the circle now doesn't let any light in.
Think about it. A Garda not saying "a public place" can lead to someone getting off the hook for breaking the law. And everyone blames the Guards for not clamping down or cleaning up the streets or whatever.
If you were busting your ass doing your job every day and then some smart ass solicitor renders your work useless because you forgot to mention something that is as pointless to the case as the colour of shirt the person was wearing, then you'd loose the will to bother your hole.
Politics and the Law are rotten to the core. The Get out of Jail Free card in monopoly is closer to real life than we thought when we were playing it!

TheNog

SteveC wrote: »

Jebus - I never realised it was that pedantic.
Having read the 2006 act, the only legally defined word is "checkpoint" (although 'Mandatory Alcohol Testing' is mentioned in the arrangement) so I would have assumed you'd refer to it as a 'checkpoint established under S4 of the RTA2006'....

....I wouldn't know though.

That is true, Road traffic law is scrutinsied to the extreme especially if that driver relies on the licence for their job. Up until a couple of years ago the percentage of drunk driving cases contested were higher than murder cases.
I'd imagine the percentage has fallen though with the foreigners especially the eastern europeans (not being racist) but they admit to drink driving straight away. In actual fact they are brilliant cos they literally fall out of the car, fall into the cuffs and then fall into the back of the patrol car. I havent seen a foreigner contest a drunk driving charge at all. All the foreigners I have caught were very polite and sometimes a bit of craic too. It is usually the Irish fellas and girls that give the abuse, deny everything, make complaints against the arresting Garda and every other Garda they come into contact with just to be awkward.

Biro wrote: »

To be fair though, that's a classic example of a group of people so caught up in the circle of their work/life that the circle now doesn't let any light in.
Think about it. A Garda not saying "a public place" can lead to someone getting off the hook for breaking the law. And everyone blames the Guards for not clamping down or cleaning up the streets or whatever.
If you were busting your ass doing your job every day and then some smart ass solicitor renders your work useless because you forgot to mention something that is as pointless to the case as the colour of shirt the person was wearing, then you'd loose the will to bother your hole.
Politics and the Law are rotten to the core. The Get out of Jail Free card in monopoly is closer to real life than we thought when we were playing it!

Agreed but with careful planning and taking of notes it is very hard for solicitor to get a driver off the hook anymore. In the year I am in the job I have not seen a driver get off but have seen some hairy cases.

TheNog

Zube wrote: »

If the Government/Dáil wanted to allow any guard to randomly breath test anyone they liked anywhere, they could have written the law that way. They didn't. The law lays out the conditions under which a random breath test is allowed, and the guards didn't follow them.

Case dismissed.

peasant wrote: »

The question is though ...why on earth didn't they ?

I think there is some confusion here with breath testing at the roadside. The roadside breath test is conducted with an alcolyser which reads either a Pass/Fail only (will not determine concentration of alcohol). The alcolyser is used in two situations:

1/ a MAT checkpoint where a Garda must have written permission from an Inspector or other officer of higher rank and that permission will have times, dates and places where the MAT checkpoints take place.
2/ if a Garda observes a driver of a vehicle and smells drink but does not have all the necessary proofs to form an opinion.

To explain the process to you a little bit more in depth, if I see a fella driving all over the road and stop him and smell drink and he has slurred speech then I must say to him " I have formed the opinion you have consumed an intoxicant to such as extent as to be incapable of having proper control of a mechanically propelled vehicle etc"

However if I use the alcolyser then my wording has to change to "I am of the opinion that you have consumed an intoxicant to such as extent as to be incapable of having proper control of a mechanically propelled vehicle etc"

See the difference? If you use the alcolyser on a driver then you haven't formed an opinion yourself but rather used the device (which failed) to be of the opinion. If you used the device and said in court "I formed the opinion" the solicitor will argue that if you formed your opinion then why did you use the alcolyser??? The solicitor will then argue you used the device outside of the law and the charge would probably then be dismissed. I would look stupid and my Super will want to tear me a new one!!!!!!

Hope I explained it well so you will get the idea

Alfasudcrazy wrote: »

Its the age ol 'Irish solution to an Irish problem' - Nod & a wink - ya know youeself etc. There is no will at Government level to get tough with drink driving - Why?. Because Dail Eireann is full of Publican or publican related TD's.

The drink driving laws were toughened up last March to increase the maximum allowed disqualification from 2 years to 4 years for a first offence and 6 years for a second and subsequent offences. The maximum fines were increased also from €2,500 to €5,000. For those who failed or refused to provide two specimens of breath, the penalty is now an automatic 4 years disqualified and/or €5,000 fine. I cant remember what it was before March 08.

Our man in Havana

So there is no requirement to give a sample if you are involved in an accident? I was asked to blow after being in a minor accident last year.

TheNog

Bond-007 wrote: »

So there is no requirement to give a sample if you are involved in an accident? I was asked to blow after being in a minor accident last year.

A requirement can be made of the driver to provide a sample of breath after a traffic collision. This would fall into situation no. 2 in my post above.