case law on 3 hour testing limit for Drink Driving

Michael Angelo.

I stress I am not looking for legal advice.

I am wondering is there case law on the 3 hour testing limit for Section 49 (2)(3)(4) law quoted below..

Section 49 of the Road Traffic Act 1961 as inserted by Section 10 of the Road Traffic Act 1994 created four separate drink driving offences in Ireland. These offences are as follows:
• An offence of driving or attempting to drive a mechanically propelled vehicle in a public place while under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle. (Section 49(1));
• An offence of driving or attempting to drive a mechanically propelled vehicle in a public place while there is present in your body a quantity of alcohol such that, within three hours after so driving or attempting to drive, the concentration of alcohol in your blood exceeds a concentration of 80 milligrams of alcohol per 100millilitres of blood. (Section 49(2));
• An offence of driving or attempting to drive a mechanically propelled vehicle in a public place while there is present in your body a quantity of alcohol such that, within three hours after so driving or attempting to drive, the concentration of alcohol in your body exceeds a concentration of 107 milligrams of alcohol per 100 millilitres of urine. (Section 49(3));
• An offence of driving or attempting to drive a mechanically propelled vehicle in a public place while there is present in your body a quantity of alcohol such that, within three hours after so driving or attempting to drive, the concentration of alcohol in your breath exceeds a concentration of 35 microgrammes of alcohol per 100 millilitres of breath. (Section 49(4)).


To put a reality check on it, what is the court room procedure if testing takes place outside the 3 hour limit, is there any caselaw on this issue. Is is one area of the.. well actually its one of fifty areas of drink driving legislation that could be contested, however we dont hear much about it.

Thanking you in advance for your views..

(This post could clearly be construed as looking for legal advice however I assure moderators I am solely looking for a good debate on such a topical issue. I have never been summonsed in my life for any offences)

Reloc8

Its very simple. There must be admissible evidence of the accused driving within a three hour period prior to the test being conducted. This could be eye-witness, admission made by the accused subject to the usual rules etc. etc.

I don't know that case law amplifies this any further than that.

You ask what if testing occurs outside of the 3 hour limit...presuming you mean after a three hour period from the last time the accused is proven to have been driving, that is basically not guilty.

There are some interesting English decisions concerning back calculations of intoxication, i.e. your breath reading was 100 ppm at testing four hours after driving so it must necessarily have been over the limit 2 and a half hours after driving, but these have not been incorporated into Irish decisions with which I am familiar.

Note of course that the 3 hour limit does not apply to s. 49(1), which is a simple offence of incapacity as opposed to exceeding concentrations. It would be perfectly acceptable for a witness to say he saw the accused exit his vehicle, fall over with the level of dhrink on him, stink of alcohol etc. etc. and this would ground a successful conviction under s. 49(1) in the absence of contradictory evidence (the prosecution would usually supplement this with evidence from a doctor who examined the accused but again the three hour limit would have no application).

Michael Angelo.

Good points made, fair play

Jo King

there are cases frequently dismissed on this ground. the prosecution must prove the time of driving. No problem where ther is a checkpouint but can be difficult when the garda come to the scene of an accident involving an intoxicated driver. If they cannot prove that there was driving within three hours of their coming to the scene the case will be dismissed. there is normally an application by the defence for a direction at the close of the prosecution case on the grounds that an essential ingredient of the offence has not been proven.

TheNog

Jo King wrote: »

If they cannot prove that there was driving within three hours of their coming to the scene the case will be dismissed.

Dont mean to cause any offence to you Jo and its probably just a simple oversight but the three hours means a person must give samples of breath/blood/urine within 3hrs of driving as opposed to having Gardai on scene/arrest within three hrs of driving.

Just to clear up any confusion is all.

mfays

You really seem to be well versed in all this!

Jo King

Sorry. I put that badly. The garda must prove there was driving within the three hours before the sample was given.There can be a difficulty when the garda come to the scene of an accident. It is always easier if the garda can say " At x.oo hours I stopped motor vehicle reg no. "
In some cases defendants have escaped because a doctor did not attend at the station in time.

TheNog

Jo King wrote: »

Sorry. I put that badly. The garda must prove there was driving within the three hours before the sample was given.There can be a difficulty when the garda come to the scene of an accident. It is always easier if the garda can say " At x.oo hours I stopped motor vehicle reg no. "
In some cases defendants have escaped because a doctor did not attend at the station in time.

Very true it is difficult at RTCs unless a witness comes forward and is willing to give a statement which must include time of driving or even if reliable CCTV is available. For single vehicle RTCs and with no witnesses available to driving then it is near an impossibility to prosecute for drunken driving.