Breathaliser test

cup of tea

If one passes the breathaliser test at the side of the road is the garda correct in asking for the breathaliser test to be retaken if he/she wants ?.Is there legislation to back this up?.DPP v mcDonagh 2008 has ties with it.

Our man in Havana

Unless there was some malfunction or other irregularity with the first test the answer would be no.

Reloc8

If its a test under the 1994 Act the Gard can carry out where there has been an accident and a vehicle is involved, or where he believes a driver has consumed alcohol or where the driver has infringed any provision of the Road Traffic Acts.

If its a random test under the 2006 Act he can carry it out on any driver.

If the driver passes the test the Gard can still arrest them if he thinks the driver has consumed liquor to such an extent as to be incapable of controlling the vehicle. The question of whether he can ask for a re-test where the test has actually produced a result is debatable - probably not. If he did this and then tried to rely on the re-test result as evidence and/or as grounding an arrest it is probable that that a judge would rule this out.

That is all presuming the test did indeed produce a result. If not he can ask again as many times as he likes until he gets a result or just make a decision on whether to arrest (perhaps for failing to provide a test sample if appropriate).

dermot_sheehan

s. 12 of the Road Traffic Act 1994 place the obligation to provide a sample when the garda is of the opinion you have consumed an intoxicant and as amended provides that the sample shall be provided in the manner that the garda may indicate.


This was amended as a case went to the supreme court as to what happens when a person provides a breath sample of an insufficient quantity for the machine to give a reading. The argument was the driver complied with the statutory requirement, the supreme court in any case read the original section purposivley and held that sufficient breath must be given so the machine can analyse it.

It's an interesting question that if a driver has been given an all clear by the machine, whether he can be compelled to give another sample. Does the requirement that he give a sample "in the manner directed" cover a second sample? Has the section 12 demand at that stage been complied and is therefore exhausted? Also how can a garda have an opinion that you've consumed an intoxicant when the field test has given an all clear on the first sample.

Whitewater-AGS

gabhain7 wrote: »

s. 12 of the Road Traffic Act 1994 place the obligation to provide a sample when the garda is of the opinion you have consumed an intoxicant and as amended provides that the sample shall be provided in the manner that the garda may indicate.


This was amended as a case went to the supreme court as to what happens when a person provides a breath sample of an insufficient quantity for the machine to give a reading. The argument was the driver complied with the statutory requirement, the supreme court in any case read the original section purposivley and held that sufficient breath must be given so the machine can analyse it.

It's an interesting question that if a driver has been given an all clear by the machine, whether he can be compelled to give another sample. Does the requirement that he give a sample "in the manner directed" cover a second sample? Has the section 12 demand at that stage been complied and is therefore exhausted? Also how can a garda have an opinion that you've consumed an intoxicant when the field test has given an all clear on the first sample.

An intoxicant does not mean just alcohol, also if your result is "alert" the garda may still form the opinion that your are intoxicated based on your driving or how your acting and looking.

UrbanFox

Reloc8 wrote: »

If the driver passes the test the Gard can still arrest them if he thinks the driver has consumed liquor to such an extent as to be incapable of controlling the vehicle.

Would this be S.49. RTA 1961 ?

cup of tea

To put an even bigger slant on the question,the person being tested is not actually the driver but the front passenger and the driver has a provisional license.If she was arrested on the charges of being drunk in control of the vehicle,would this be fair? even though she was not behind the wheel.

GerardKeating

cup of tea wrote: »

To put an even bigger slant on the question,the person being tested is not actually the driver but the front passenger and the driver has a provisional license.If she was arrested on the charges of being drunk in control of the vehicle,would this be fair? even though she was not behind the wheel.

Totally fair, what the point of the provisional driver being accompanied by someone with a full licence if that person is drunk...

MrMicra

cup of tea wrote: »

To put an even bigger slant on the question,the person being tested is not actually the driver but the front passenger and the driver has a provisional license.If she was arrested on the charges of being drunk in control of the vehicle,would this be fair? even though she was not behind the wheel.

GerardKeating wrote: »

Totally fair, what the point of the provisional driver being accompanied by someone with a full licence if that person is drunk...

I agree that would be totally fair to punish her but a drunk person supervising a sober learner doesn't (so far as I can see) commit an offense.
The Road Traffic Act 2002 states that it is an offense to refuse to provide a breath sample if you are in charge of a vehicle. The front seat passenger would arguably be guilty of an offense if he or she refused to provide a sample.

However the Road Traffic Act 1961 (which I believe still defines drink driving) refers to driving a mechanically propelled vehicle, attempting to drive a mechanically propelled vehicle and intending to drive a mechanically propelled vehicle. It is quite specific.

It seems to me that a new offense of refusing to provide a sample would apply to the front seat passenger but the old drink driving offense does not. Therefore if the passenger gave a sample and was over the limit she commits no offense and if she refuses to give a sample and is over the limit she does commit an offense.

Also I don't believe that under the Licensing of Drivers Statutory Instrument 2006 you are required to be sober to 'legalise' a learner and therefore the learner is not committing an offense.

Reloc8

gabhain7 wrote: »

Also how can a garda have an opinion that you've consumed an intoxicant when the field test has given an all clear on the first sample.

It happens not infrequently that a person who passes the roadside test is nonetheless arrested for drink driving and subsequently fails the test at station - which is the test relied upon in evidence to establish breath/blood/urine alcohol concentration. There is nothing wrong with this - in order to arrest the Garda has to form the opinion that you've consumed alcohol to such an extent as to be incapable of controlling the vehicle, not that you've consumed alcohol to a level in excess of the limits proscribed by law. The opinion simply has to be formed bona fide and grounded on reasons. The fact of passing a road side test does not prevent an arrest - there are numerous cases in the UK and at least one here that establish this.

You can then be prosecuted for the offence of exceeding the limits, if indeed a diagnostic breath test (not roadside) shows that you have or for the offence of simple incapacitation which relies not on proof of exceeding limits but on evidence of your general level of intoxication as observed by gardai and usually a doctor. The point in respect of the former offences (separate one for blood, urine and breath) is that it is no defence to show you were capable of driving. The point in respect of the latter is that it is no defence to show that you had not exceeded the limits.

UrbanFox wrote: »

Would this be S.49. RTA 1961 ?

The arrest power - yep.

cup of tea

Thanks for the responses so far,anybody have any more opinions especially with regard to the first question?