Discretionary Powers.

stomprockin

Hi

Does a Judge have Discretionary Powers under Section 50?

MagicSean

Section 50 of what?

stomprockin

sorry.. section 50 road traffic act.

50.—(1) In this section "unfit to drive" means under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of a mechanically propelled vehicle.

MagicSean

Discretion to do what?

Our man in Havana

Not to disqualify presumably.

stomprockin

Discretionary to impose a fine or ban someone off the road for 6 mounts for this particular offense. or is there a set penalty of that offense?

Sorry, i hope i explained it a bit better.

stomprockin

Basically my younger brother had a few drinks one night and jump into the car around 2am. put the seat back and went to sleep.
At 7am two guards knocked on the window and arrested and charged him?

We all thought he done the right thing but obviously not?

I'm wondering is he looking at 1 year off the road or a fine ?

amcalester

Was he in the drivers seat or passengers seat? Was the key in the ignition?

stomprockin

key was in the ignition, he had to put it in to recline the driver seat.

Edit - he was in the driver seat.

MagicSean

Afaik with a section 49 the judge cannot reduce the mandatory ban but can decide on the fine. I would presume it is the same with a section 50.

stomprockin

Thanks K Mac and to all.

Jo King

In a Section 50, an intention to drive has to be proven. The usual indicia are, key in ignition, accused in drivers seat. The fact that the seat was reclined negates the inference of an intention to drive. It is a matter for the judge hearing the case to decide whether it has been proven beyond reasonable doubt that the accused intended to drive. This will involve a plea of not guilty, cross examination of the arresting guard and most likely the accused to give evidence.
If the accused pleads not guilty and is convicted the fine will be higher that if there was a guilty plea. A solicitor or barrister who appears regularly before the judge in question should be consulted.

detective

Jo King wrote: »

In a Section 50, an intention to drive has to be proven. The usual indicia are, key in ignition, accused in drivers seat. The fact that the seat was reclined negates the inference of an intention to drive.

This is not entirely correct. There is case law on this issue (DPP V Byrne, Supreme court 2001). I see your point on the seat being reclined, however, it could be argued by the prosecution that people drive in all different positions.

In this case quoted by myself Mr. Justice Murray states "the relevant provisions of Section 50 creates an inextricable link between being in charge and the intention to drive... The link between being in charge of a vehicle and the intent to drive must mean that in the circumstances in which the Defendant is found to be in charge he has an intention, at some point, while in charge, to drive the motor vehicle. It is that intention which does not have to be immediate or an intention to do so within a particular time-frame. As in all cases of this nature there is a myriad combination of circumstances which can be conjured up on hypothetical basis. It is really a question of applying the terms of the relevant subsection to the facts of each case according to their ordinary and everyday meaning.

Here's the full text http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/0e21578ec9293b5880256ccc003d3ef1?OpenDocument

stomprockin

Thanks Guys.. i will let you know the outcome and give more details soon.