slightly over the limit

jakdelad

could this be argued as a defense in court.

a person stopped and breathelised on the road and after bagging and the guard thinks [sorry forms the opinon] he s over the limit.
brings him to the station and takes a sample of his breath from the machine
h e s found to be slightly over the limit enough to convict say.

could he argue in court that
at the time of being stopped on the road he had only a half mile to get home.and at that time his blood alcohol level was below the limit
however by the time he was processed brought to the station etc etc
and the sample taken he was over the limit
and that if he had of traveled the half mile home he would have parked
his car and not have crossed the limit line at that paticular moment
and that theroetically at the exact time he was stopped he was not over the limit
can you be convicted retrospectivly for this
thanks

JustAddWater

How do you go from being under the limit at roadside to over the limit at the garda station?

As time goes by you sober up not get more intoxicated

Not being funny but your post made no sense!

not even wrong

jakdelad wrote: »

at the time of being stopped on the road he had only a half mile to get home.and at that time his blood alcohol level was below the limit
however by the time he was processed brought to the station etc etc
and the sample taken he was over the limit

How is this possible? unless he was drinking in the back of the squad car?

Jagle

your talking about the possible time taken from drink to enter your system and go through it and be absorbed.

thing is did they not ask when had you your last drink, they often wont breathalyse you if youve had a drink within 20-30 minutes

jakdelad

JustAddWater wrote: »

How do you go from being under the limit at roadside to over the limit at the garda station?

As time goes by you sober up not get more intoxicated

Not being funny but your post made no sense!

does your alcohol level not have to build up before it comes down???
i understood the roadside test was only an indicator to the guards
and that the intoxiliser in the station was there for complete accuracy
the legality i was seeking was
at the exact time of being stopped on the road
and after time say an hour you were just over the limit to convict
theoretically you could argue in court that.
considering the distance say half a mile to get home
at that exact time you were not over the limit
that you exceeded the limit while waiting in the station to be processed
and not in your car,your alcohol level was climbing

Victor

The law is technical, that is certain technical tests (although there are some subjective ones) to determine whether you are guilty or not. While this may be harsh in certain cases, it would be impractical to act otherwise. The law sets out a test and that test was failed (or passed depending on perspective).

That you may be half a mile from home proves nothing.

That you were only marginally over the limit has two possibilities - that your BAC was rising or falling.

The 2006(?) act provides for cases where people are marginally over the limit.

bath handle

The offence is defined as being over the limit within three hours of driving. It does not matter that a person was under the limit at the time of driving. Some American states do allow a defence as suggested by the o/p. There are charts on the net giving examples of blood alcohol levels rising after drinking stops.

jakdelad

Victor wrote: »

The law is technical, that is certain technical tests (although there are some subjective ones) to determine whether you are guilty or not. While this may be harsh in certain cases, it would be impractical to act otherwise. The law sets out a test and that test was failed (or passed depending on perspective).

That you may be half a mile from home proves nothing.

That you were only marginally over the limit has two possibilities - that your BAC was rising or falling.

The 2006(?) act provides for cases where people are marginally over the limit.

it does provide for cases victor
but your still punished maybe not as severely.....
however the arguement i put
was the person under the limit or over the limit at the time of stopping
surley you cant work on the assumption well hes not over the limit now
but if we wait a while he will
and you could say when i reached the limit i was sitting in the garda station waiting for gard giggles to set up the intoxilser..
harsh in certain cases, is not justiice,
wheather your bac was rising or falling is not the issue
the ssue is at exactly 11.30 pm when stopped was the person over the limit
the fact that no, but he was heading that way should not enter into it
thats like saying well we arrested him because we formed the opinion he was going to rob the house because he was looking in the window at the rolex on the table
you cannot convict on an assumption

Reloc8

bath handle wrote: »

The offence is defined as being over the limit within three hours of driving. It does not matter that a person was under the limit at the time of driving. Some American states do allow a defence as suggested by the o/p. There are charts on the net giving examples of blood alcohol levels rising after drinking stops.

^ This.

Over the limit, within 3 hours of driving an MPV in a public place = the offence.

There are specific provisions covering a situation where a person may have drunk alcohol since driving - e.g. where you drive somewhere, get reported or what not, and can prove that you consumed alcohol after the act of driving relied upon by the prosecution.

kingtut

The person would have no way of proving that they were on their way home and not on their way to get more alcohol.

jakdelad

Reloc8 wrote: »

^ This.

Over the limit, within 3 hours of driving an MPV in a public place = the offence.

There are specific provisions covering a situation where a person may have drunk alcohol since driving - e.g. where you drive somewhere, get reported or what not, and can prove that you consumed alcohol after the act of driving relied upon by the prosecution.

so the y wait 3 hours in the station before they breathelise you??
i dont think so
if its the case then its a crock
you either are over or your not
where does this 3 hours come in???
can they drive into your yard knock on your door and say you were driving an hour ago now we want to arrest you????

Zambia

Maybe somebody should post up the law that covers when you are breath tested at a station.

I am pretty sure the offence is at the time of breadth testing.

Regardless of up or down cycles, besides if you where driving on an up cycle thats so much worse as a person.

"**** lads I should not have skulled that last pint I better head home before my PCA goes up.

tenchi-fan

jakdelad wrote: »

if its the case then its a crock
you either are over or your not
where does this 3 hours come in???

I wasn't aware of a three 3 hour rule, but I'm sure it's existence is solely to make it impossible for people to argue such a technicality as you are suggesting.

I don't know anyone who was convicted of drink driving who hadn't actually consumed alcohol, so it's fair to assume anyone who drinks alcohol immediately before driving has a chance of being convicted for drink driving offences.

It would be absolutely pathetic to attempt to enforce a law where the onus was on the police to prove someone's blood-alcohol limit was increasing or decreasing, much less that the person's destination was half a mile away and not to the next off licence!

Reloc8

Zambia wrote: »

Maybe somebody should post up the law that covers when you are breath tested at a station.

I am pretty sure the offence is at the time of breadth testing.

Regardless of up or down cycles, besides if you where driving on an up cycle thats so much worse as a person.

"**** lads I should not have skulled that last pint I better head home before my PCA goes up.

S. 49/S. 50 RTA (former for driving latter for in charge)

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

(b) In this subsection ‘intoxicant’ includes alcohol and drugs and any combination of drugs or of drugs and alcohol.

(2) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his blood will exceed a concentration of 80 milligrammes of alcohol per 100 millilitres of blood.

(3) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his urine will exceed a concentration of 107 milligrammes of alcohol per 100 millilitres of urine.

(4) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his breath will exceed a concentration of 35 microgrammes of alcohol per 100 millilitres of breath.

(5) (a) The Minister may, by regulations made by him, vary the concentration of alcohol for the time being standing specified in subsection (2), (3) or (4) of this section, whether generally or in respect of a particular class of person, and the said subsection shall have effect in accordance with any such regulations for the time being in force.

(b) A draft of every regulation proposed to be made under this subsection shall be laid before each House of the Oireachtas and the regulation shall not be made until a resolution approving of the draft has been passed by each such House and section 5 (2) of this Act shall not apply to a regulation made under this subsection.

(6) (a) A person who contravenes subsection (1), (2), (3) or (4) of this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 6 months or to both.

(b) A person charged with an offence under this section may, in lieu of being found guilty of that offence, be found guilty of an offence under section 50 of this Act.

(7) Section 1 (1) of the Probation of Offenders Act, 1907, shall not apply to an offence under this section.

(8) A member of the Garda Síochána may arrest without warrant a person who in the member's opinion is committing or has committed an offence under this section.”.

jakdelad wrote: »

so the y wait 3 hours in the station before they breathelise you??
i dont think so
if its the case then its a crock
you either are over or your not
where does this 3 hours come in???
can they drive into your yard knock on your door and say you were driving an hour ago now we want to arrest you????

No. No one said that...but any evidential breath test conducted within 3 hours of you being seen driving is sufficient to proof the offence contrary to S. 49(2), (3) or (4). S. 49(1) is a different kettle of fish relying on capacity to drive and not concentration of intoxicant.

The question of entering private property to effect an arrest following observation of driving in a public place is a whole other kettle of fish - the answer is often yes but sometimes no.

Honestly...not making this stuff up lads.

jakdelad

tenchi-fan wrote: »

I wasn't aware of a three 3 hour rule, but I'm sure it's existence is solely to make it impossible for people to argue such a technicality as you are suggesting.

I don't know anyone who was convicted of drink driving who hadn't actually consumed alcohol, so it's fair to assume anyone who drinks alcohol immediately before driving has a chance of being convicted for drink driving offences.

It would be absolutely pathetic to attempt to enforce a law where the onus was on the police to prove someone's blood-alcohol limit was increasing or decreasing, much less that the person's destination was half a mile away and not to the next off licence!

enforce is such a strong word. i would prefer uphold the law...
because there might be inconvenience that shouldent override your right to fair justice.
a simple question
was the person at that time he was stopped over the legal limit yes or no.
the garda answer well we formed an opinoin and by the time we flutered
around got to the garda station processed him and breath tested him
he was just inside the conviction mark
he was over the limit at the station
so therefore theres a good possibility he was not over the limit when stopped therefore this creates doubt
and judges dont like doubt
i am only trying to tease this one out boys.

Reloc8

If you are over the limit within 3 hours of driving in a public place you have committed the offence, subject to the 'hip flask defence' provisions which relate to consumption of alcohol after you have been seem driving.

jakdelad

well done reloc thanks
only now to be a really awkward hoor
i seek dismissal on a technicality

(3) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his urine will exceed a concentration of 107 milligrammes of alcohol per 100 millilitres of urine

the act states person
but goes on to state alcohol in his urine..
this refers to a man
i say the law is biased against men
it does not mention female
and seek dismissal
what say you reloc

Reloc8

His means her in law
Interpretation Act says
They have thought of this

jakdelad

Reloc8 wrote: »

His means her in law
Interpretation Act says
They have thought of this

well thats the layman counted out
thank you reloc8

tenchi-fan

jakdelad wrote: »

enforce is such a strong word. i would prefer uphold the law...

And your way of upholding the law is to nitpick and look for technicalities to circumvent the law? I'm not buying it.

(PS wasn't to "Uphold the law" one of Robocop's objectives?)

jakdelad wrote: »

was the person at that time he was stopped over the legal limit yes or no.

At the time the person was stopped had they consumed so much alcohol that they are possibly a danger on the roads. yes or no.

In fairness, anyone even near the limit obviously consumed alcohol recently and should not be driving. The only reason a blood-alcohol limit exists is to stop the unfair situation where someone who ate a chocolate liqueur, or who had a few drinks the night before, or had one beer with lunch 5 hours ago isn't accidentally lumped into the same category as someone who had a feed of pints and attempted to drive home.

jakdelad wrote: »

therefore this creates doubt
and judges dont like doubt

No one does. Except lawyers.

jakdelad

tenchi-fan wrote: »

And your way of upholding the law is to nitpick and look for technicalities to circumvent the law? I'm not buying it.

(PS wasn't to "Uphold the law" one of Robocop's objectives?)


At the time the person was stopped had they consumed so much alcohol that they are possibly a danger on the roads. yes or no.

In fairness, anyone even near the limit obviously consumed alcohol recently and should not be driving. The only reason a blood-alcohol limit exists is to stop the unfair situation where someone who ate a chocolate liqueur, or who had a few drinks the night before, or had one beer with lunch 5 hours ago isn't accidentally lumped into the same category as someone who had a feed of pints and attempted to drive home.



No one does. Except lawyers.

whoa there
nitpicking???
would you call someone wrongly accused of a crime trying to defend himself. nitpicking
i was exploring the finer points of law with the people here who have some knowledge of the subject
i think you are forgetting about the presumption of innocence?
while i condemm drink driving
i also beleive in justice
i know you would like to rubberstamp guilty every drink driving case
but it dosent always work out like that.
do you really think our drink driving laws were brought in to counter
someone who ate a chocolate liqueur are you serious????
[Originally Posted by jakdelad ]
[therefore this creates doubt ]
[and judges dont like doubt ]

No one does. Except lawyers.

[nitpick and look for technicalities to circumvent the law]
how dare you sir retract that statement.
thats a slur on the legal profession and their trade
whilst i am only an ordinary worker near my retirement
i find the most helpfull people here as regards aspects of law
and i will not be chastised for teasing out a finer point of law..
try and be a little more constructive with your posts
and not be supercilious
as regards your derogatory remark to uphold rather than enforce the law
i wont comment ...............
fastidiosam quis

slimjimmc

jakdelad wrote: »

whoa there
nitpicking???
would you call someone wrongly accused of a crime trying to defend himself. nitpicking
i was exploring the finer points of law with the people here who have some knowledge of the subject
i think you are forgetting about the presumption of innocence?
while i condemm drink driving
i also beleive in justice
i know you would like to rubberstamp guilty every drink driving case
but it dosent always work out like that.
do you really think our drink driving laws were brought in to counter
someone who ate a chocolate liqueur are you serious????
[Originally Posted by jakdelad ]
[therefore this creates doubt ]
[and judges dont like doubt ]

No one does. Except lawyers.

[nitpick and look for technicalities to circumvent the law]
how dare you sir retract that statement.
thats a slur on the legal profession and their trade
whilst i am only an ordinary worker near my retirement
i find the most helpfull people here as regards aspects of law
and i will not be chastised for teasing out a finer point of law..
try and be a little more constructive with your posts
and not be supercilious
as regards your derogatory remark to uphold rather than enforce the law
i wont comment ...............
fastidiosam quis

Why do you think he was wrongly accused?

Was the evidential test taken more the 3 hours after he was caught driving? If the test was performed within this 3 hr window and his BAC exceeded the limit (as you yourself stated) then the allegation against him is correct is it not? After that it's up to the judge to determine if he's guilty based on the evidence presented.

coylemj

jakdelad wrote: »

whoa there
nitpicking???
would you call someone wrongly accused of a crime trying to defend himself. nitpicking
i was exploring the finer points of law with the people here who have some knowledge of the subject
i think you are forgetting about the presumption of innocence?
while i condemm drink driving
i also beleive in justice
i know you would like to rubberstamp guilty every drink driving case
but it dosent always work out like that.
do you really think our drink driving laws were brought in to counter
someone who ate a chocolate liqueur are you serious????
[Originally Posted by jakdelad ]
[therefore this creates doubt ]
[and judges dont like doubt ]

No one does. Except lawyers.

[nitpick and look for technicalities to circumvent the law]
how dare you sir retract that statement.
thats a slur on the legal profession and their trade
whilst i am only an ordinary worker near my retirement
i find the most helpfull people here as regards aspects of law
and i will not be chastised for teasing out a finer point of law..
try and be a little more constructive with your posts
and not be supercilious
as regards your derogatory remark to uphold rather than enforce the law
i wont comment ...............
fastidiosam quis

Typical of the BS this OP descends to in every thread he starts.

Reloc8

All people will hope
Never to need a lawyer
Some do and are sad

MagicSean

Some people like to
Nitpick at every law
Yet don't understand

(hmm.... is every a two or three syllable word?)

Reloc8

Lawyer for advice
A Garda for protection
Don't confuse the two




(edit : 2 btw - every that is)

jakdelad

coylemj wrote: »

Typical of the BS this OP descends to in every thread he starts.

very easy to butt in with snide comments michael,
i think the mods delt with you for this type of comment before
you obviously have not learned..
if your not prepared to join in the debate
please dont be rude its not nice to others here.........
reloc8 what was the hip flask defence please, would be interested to hear it

Reloc8

A man has driven
Afterwards he has some pints
He may escape guilt

3DataModem

if asking yourself
"am I ok to drive now?"
answer always no

Tom Young

Looks at form of users
Considers closing thread
Grows tired of certain users
Hovers over close and infract ....

MagicSean

3DataModem wrote: »

if asking yourself
"am I ok to drive now?"
answer always no

I think he is referring to someone who drinks alcohol between the time they exit the car and the time they are tested. However in a case such as this I believe it falls on the defence to prove it had an effect on the test result and that the defendant would have had a negative test result if they hadn't had the drink. I saw a case like this recently where a person drank from a bottle of vodka after an accident. They were charged with attempting to frustrate a prosecution in addition to drink driving.

Reloc8

Tom Young wrote: »

Looks at form of users
Considers closing thread
Grows tired of certain users
Hovers over close and infract ....

Haikus only please
Otherwise there is no point
To this thread that grows