Judge fined for failing to comply on breath test

silverharp

I always thought that failing to do a breathalyser was treated similar to failing the test , did the judge have an easy ride or can future drunk drivers just be able to refuse and get a fine without being disqualified?


http://www.irishtimes.com/newspaper/ireland/2012/0728/1224320947142.html

A CIRCUIT Court judge has been fined €600 after he pleaded guilty to failing to comply with a request by a garda to use a breathalyser in Connemara last year.

The Courts Service has confirmed the fine was imposed on Judge James O’Donohue (54) under section 2 of the Road Traffic Act at Clifden District Court last Thursday.

Judge O’Donohue,with an address in Dublin 3, had failed to comply with a request for a breath specimen made by Garda Dean Landers on August 19th, 2011, at Ballyconneely, Clifden, Co Galway.

He was driving a car registered in 2009 at the time.

ResearchWill

silverharp wrote: »

I always thought that failing to do a breathalyser was treated similar to failing the test , did the judge have an easy ride or can future drunk drivers just be able to refuse and get a fine without being disqualified?


http://www.irishtimes.com/newspaper/ireland/2012/0728/1224320947142.html

Section 12 is the road side test, I would think he refused to do that was brought back to station and then provided sample which was below legal limits, otherwise they would have done him for for either drink driving or section 13 refusal, while section 13 carries a min 4 year ban section 12 has no min ban, to the best of my knowledge.

Procrastastudy

He probably knew he was borderline and the time delay would mean he was certainly under the limit by the time he provided the sample at the station. Not exactly rocket science and anyone is able to do this. It wasn't done because he was a Judge.

Not exactly the example one should be setting though perhaps.

ResearchWill

GCDLawstudent wrote: »

He probably knew he was borderline and the time delay would mean he was certainly under the limit by the time he provided the sample at the station. Not exactly rocket science and anyone is able to do this. It wasn't done because he was a Judge.

Not exactly the example one should be setting though perhaps.

The roadside sample can not be used to convict of drink driving, so it matter not he refused at that time, the important thing is is provided a sample in the station and was not over the limit.

whiteonblu

Why do they reference the car was 2009 reg? Is that relevant?

Procrastastudy

ResearchWill wrote: »

The roadside sample can not be used to convict of drink driving, so it matter not he refused at that time, the important thing is is provided a sample in the station and was not over the limit.

Well maybe he's just been watching too much of th West Wing.

Victor

ResearchWill wrote: »

The roadside sample can not be used to convict of drink driving, so it matter not he refused at that time, the important thing is is provided a sample in the station and was not over the limit.

Can't a garda simply give evidence that the person was intoxicated / unsuited to driving at the time and get a conviction on that basis?

GCDLawstudent wrote: »

He probably knew he was borderline

Dangerous strategy as there are many factors at play between the time the alcohol is ingested and the time the alcohol per breath / blood / urine peaks.

whiteonblu wrote: »

Why do they reference the car was 2009 reg? Is that relevant?

Padding. And nosiness.

ResearchWill

Victor wrote: »

Can't a garda simply give evidence that the person was intoxicated / unsuited to driving at the time and get a conviction on that basis?

Dangerous strategy as there are many factors at play between the time the alcohol is ingested and the time the alcohol per breath / blood / urine peaks.

Padding. And nosiness.

A section 4 (1) is very hard to get a conviction on. There is nothing stopping a Garda doing sobriety test, walk a line etc. but unless the person is totally out of it hard to get a conviction. AGS often in cases of section 12 refusal also bring a section 4 (1) charge but as I said hard to convict on that.

Section 4 (1) is more and more being used in drug driving cases, as the sample only proves positive for drugs not the amount, but there would also be need to have evidence on inability to control a MPV.

Victor

But drug-driving is a strict liability situation.

What is the opposite of strict liability (per se?) legislation called?

kirving

Victor wrote: »

Can't a garda simply give evidence that the person was intoxicated / unsuited to driving at the time and get a conviction on that basis?

I have no idea, probably.

If it is true, I don't think a Garda should be allowed to make that assesment without any scientific backup. Judging how drunk someone is from their demeanor is a difficult task, and very subjective. A Garda who doesn't drink might think that a person who has had one drink is incapable of driving safely, whereas another Garda who drinks a lot may think that two drinks is fine. Road side sobriety tests would help balance this out.

ResearchWill

Victor wrote: »

But drug-driving is a strict liability situation.

What is the opposite of strict liability (per se?) legislation called?

The same section deals with drink driving and drug driving the correct legal term is intoxicated and intoxicant.


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

There must be evidence of an intoxicant, in drink driving at its least that is smell of drink in deug case the lab test result showing the drug. Then there must also be evidence of inability to have proper control of a MPV can can be shown by a crash, evidence of erratic driving or sobriety tests.

Dring driving sample cases are strict liability, no matter how good your driving if your over the limit your guilty. In section 4 (1) cases there has to be evidence of inability to drive.

amen

out of interest what is the legal definition of intoxicant ?

ResearchWill

amen wrote: »

out of interest what is the legal definition of intoxicant ?

The 1994 Act gave a definition,


10.—The following section is inserted in the Principal Act in substitution for section 49 of that Act:

“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.

Carawaystick

ResearchWill wrote: »

The 1994 Act gave a definition,


10.—The following section is inserted in the Principal Act in substitution for section 49 of that Act:

“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.

Wondering why alcohol is not recognised as a drug?

Also following Gavin Sheridan's case last week, has "includes" been defined?

Milk & Honey

Carawaystick wrote: »

Wondering why alcohol is not recognised as a drug?

Who says its not?

coylemj

Milk & Honey wrote: »

Who says its not?

I think the poster is referring to the distinction (between alcohol and drugs) used in this legal definition, clearly the word 'drugs' as used here does not include alcohol.

ResearchWill wrote: »

The 1994 Act gave a definition,

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

Carawaystick

Milk & Honey wrote: »

Who says its not?

The act mentions Alcohol and drugs or a combination of alcohol and drugs
This is either tautology or Oireachteas members not counting alcohol as a drug