Road Traffic Accident - breathalyzer?

hcass

Don't want to give too many details but was involved in a RTA and the Gardai did not test the driver (who admitted liability) for alcohol.

Is this not standard procedure?

Driver has admitted liability but the reason I am upset is that I smelled drink on driver's breath (he and a passer-by helped me up off the ground) - I told the passer-by my suspicions and he in turn told the Gardai when they arrived. But no test was done.

Am livid to be honest but what to do next?

Pro Hoc Vice

hcass wrote: »

Don't want to give too many details but was involved in a RTA and the Gardai did not test the driver (who admitted liability) for alcohol.

Is this not standard procedure?

Driver has admitted liability but the reason I am upset is that I smelled drink on driver's breath (he and a passer-by helped me up off the ground) - I told the passer-by my suspicions and he in turn told the Gardai when they arrived. But no test was done.

Am livid to be honest but what to do next?

It's now standard procedure after an accident to test drivers. If it records a fail its off to Garda Station for proper sample if the person was not arrested or asked to go to Garda Station (usually arrested) then its clear they passed the roadside test. AGS even have power to get sample from injured driver in hospital.

But if AGS after speaking to a driver do not believe he is intoxicated I don't think there is any obligation to test.

If you are injured you can as a next step start personal injuries case, in relation to criminal proceeding there is nothing you can do. Smelling drink does not mean a person is guilty of drink driving.

Little CuChulainn

Generally they will only breathalise people if there is an injury or if they believe they are intoxicated.

BaronVon

Any RTC involving personal injury that requires medical assistance, AGS are obliged to breath test any drivers involved, as per Section 7 of the 2011 RTA

In the OP's case, it would depend on the extent of injuries, if any?

hcass

I was taken away in an ambulance - so yes there was an injury.

hcass

Thank you for your answers - apparently there was no breathalyzer in the car but according to the link you have given me (Section 7 of the 2011 RTA) one Garda should have waited with the driver while the other went back to the station and got the apparatus. The station is a five minute drive from the scene of the accident.

Spoke to the Sergeant today and was fobbed off - really annoyed now. Wish I had have seen this RTA act 2011 before I called him.

Dial Hard

Little CuChulainn wrote: »

Generally they will only breathalise people if there is an injury or if they believe they are intoxicated.

I'm pretty sure they breathalyse as a matter of course these days. I was in a fender bender on my way to work a few weeks back and they breathalysed me and the guy I rear-ended.

Fred Swanson

This post has been deleted.

Pro Hoc Vice

hcass wrote: »

Thank you for your answers - apparently there was no breathalyzer in the car but according to the link you have given me (Section 7 of the 2011 RTA) one Garda should have waited with the driver while the other went back to the station and got the apparatus. The station is a five minute drive from the scene of the accident.

Spoke to the Sergeant today and was fobbed off - really annoyed now. Wish I had have seen this RTA act 2011 before I called him.

With out checking the legislation I think they can only hold the driver to get a machine if the Guard himself has formed an opinion 1 intoxicant consumed 2 inability.

hcass

But if a witness has told the Gardai that he suspected the driver was drunk/had been drinking because he smelled alcohol on his breath would you not think they would make a point of getting the breathalyzer to be certain?

I checked the legislation and here is it:

“9.— (1) This section applies to a person in charge of a mechanically propelled vehicle in a public place who, in the opinion of a member of the Garda Síochána—

(a) has consumed intoxicating liquor,

(b) is committing or has committed an offence under the Road Traffic Acts 1961 to 2011,

(c) is or has been, with the vehicle, involved in a collision, or

(d) is or has been, with the vehicle, involved in an event in which death occurs or injury appears or is claimed to have been caused to a person of such nature as to require medical assistance for the person at the scene of the event or that the person be brought to a hospital for medical assistance.

(2) A member of the Garda Síochána shall, unless he or she is of opinion that the person should be arrested and subject to subsections (6) and (7), require a person to whom paragraph (a) or (d) of subsection (1) applies, and may require a person to whom paragraph (b) or (c) of that subsection applies—

(a) to provide, by exhaling into an apparatus for indicating the presence of alcohol in the breath, a specimen of his or her breath in the manner indicated by the member,

(b) to accompany him or her to a place (including a vehicle) at or in the vicinity of the public place concerned and there to provide, by exhaling into such an apparatus, a specimen of his or her breath in the manner indicated by the member, or

(c) where the member does not have such an apparatus with him or her, to remain at that place in his or her presence or in the presence of another member of the Garda Síochána (for a period that does not exceed one hour) until such an apparatus becomes available to him or her and then to provide, by exhaling into such an apparatus, a specimen of his or her breath in the manner indicated by the member.

I was injured and I was brought to hospital. I highlighted the parts that I believe apply here - am I wrong?

If not then what can I do about it?

Little CuChulainn

It's all very situation dependent to be honest. If they have a device in the car they will probably use it and if they don't they are unlikely to hang around for an hour waiting for one unless they have some reason to believe the person was drinking. I would imagine that they spoke to the other driver so if there was alcohol on his breath they probably would have noticed. I get the impression from your post you had already gone off in the ambulance before they arrived and you don't actually say what injury you have so it's hard to give a more detailed answer.

If you are unhappy with how they acted then make a report to the ombudsman. Nothing else to do.

hcass

Little CuChulainn wrote: »

It's all very situation dependent to be honest. If they have a device in the car they will probably use it and if they don't they are unlikely to hang around for an hour waiting for one unless they have some reason to believe the person was drinking. I would imagine that they spoke to the other driver so if there was alcohol on his breath they probably would have noticed. I get the impression from your post you had already gone off in the ambulance before they arrived and you don't actually say what injury you have so it's hard to give a more detailed answer.

If you are unhappy with how they acted then make a report to the ombudsman. Nothing else to do.

I don't mean to be a smart arse - but I smelled the alcohol on his breath. I didn't imagine it. They may not have noticed it but it was brought to their attention by someone at the scene. I was there for the Gardai - they spoke to me briefly and told me the driver had admitted full liability, I did not mention that I thought yer man was drinking because at that stage I was flat out on a board with a head brace. Also it would have taken five minutes to get a breathalyzer - the station is that close - not an hour. As far as I can see they were too lazy to bother testing him. There is more to this story that I can't talk about here and is probably why I am getting overly emotional about the whole thing. Anyway - thanks for all your help. I think I will go to the Ombudsman and at least see what they have to say.

conorh91

In circumstances such as this, the only available exclusion is where the driver of the other vehicle suffered sufficient injuries as to render a breath alcohol test prejudicial to his or her health.

Source: any possible reading of the above section of the 2011 Act.

It is not "situation-dependent". The section is clear.

If the OP's account of the accident is accurate, resorting to the Ombudsman sounds very sensible.

Fred Swanson

This post has been deleted.

hcass

He wasn't hurt - he knocked me over in his car. So he didn't go to Hospital.

Little CuChulainn

hcass wrote: »

I don't mean to be a smart arse - but I smelled the alcohol on his breath. I didn't imagine it. They may not have noticed it but it was brought to their attention by someone at the scene. I was there for the Gardai - they spoke to me briefly and told me the driver had admitted full liability, I did not mention that I thought yer man was drinking because at that stage I was flat out on a board with a head brace. Also it would have taken five minutes to get a breathalyzer - the station is that close - not an hour. As far as I can see they were too lazy to bother testing him. There is more to this story that I can't talk about here and is probably why I am getting overly emotional about the whole thing. Anyway - thanks for all your help. I think I will go to the Ombudsman and at least see what they have to say.

The Ombudsman won't have much to say to you. You make your complaint and you will be told of any disciplinary outcome in the future. FYI, breath testers are generally kept in the cars, not the station. If they hadn't got one with them, there probably was none in the station.

gctest50

conorh91 wrote: »

In circumstances such as this, the only available exclusion is where the driver of the other vehicle suffered sufficient injuries as to render a breath alcohol test prejudicial to his or her health.

Amendment of Act of 2010 — taking of blood from unconscious driver

gctest50

bit more helpful to you :

hcass wrote: »

Don't want to give too many details but was involved in a RTA and the Gardai did not test the driver (who admitted liability) for alcohol.

Is this not standard procedure?
..........

only happens half the time

Over half of motorists in fatal crashes not given alcohol test

http://www.independent.ie/irish-news/over-half-of-motorists-in-fatal-crashes-not-given-alcohol-test-26882852.html

conorh91

gctest50 wrote: »

Amendment of Act of 2010 — taking of blood from unconscious driver

Ok… what has this got to do with my comments on the RTA of 2011?

kravmaga

hcass wrote: »

Don't want to give too many details but was involved in a RTA and the Gardai did not test the driver (who admitted liability) for alcohol.

Is this not standard procedure?

Driver has admitted liability but the reason I am upset is that I smelled drink on driver's breath (he and a passer-by helped me up off the ground) - I told the passer-by my suspicions and he in turn told the Gardai when they arrived. But no test was done.

Am livid to be honest but what to do next?

Very surprised that the Gardai in attendance did not take a sample of breath, even if no kit in car they could have radioed for a traffic car to attend.


I would not be happy with this OP, request the names /collar numbers of the 2 members who attended the RTC scene from Station Sgt , tell him you are making a formal complaint to GSOC and require the information.

He will have the info on PULSE system and then make your complaint to GSOC.

Poor Policing imo.

ardle1

kravmaga wrote: »

Very surprised that the Gardai in attendance did not take a sample of breath, even if no kit in car they could have radioed for a traffic car to attend.


I would not be happy with this OP, request the names /collar numbers of the 2 members who attended the RTC scene from Station Sgt , tell him you are making a formal complaint to GSOC and require the information.

He will have the info on PULSE system and then make your complaint to GSOC.

Poor Policing imo.

+1.

conorh91

I agree with the previous posts in principle, but the whole narrative is just so *obviously* wrong in law that it makes me think there has to be more to this story.

In my experience, the way it usually works is that Gardaí usually put lawyers right on the obligations of the former.

I find it bordering on the incomprehensible that a Garda would not be familiar with his obligations under the 2011 Act.

It's just bizarre.

Not that it being bizarre makes it untrue, of course.

Little CuChulainn

conorh91 wrote: »

I agree with the previous posts in principle, but the whole narrative is just so *obviously* wrong in law that it makes me think there has to be more to this story.

In my experience, the way it usually works is that Gardaí usually put lawyers right on the obligations of the former.

I find it bordering on the incomprehensible that a Garda would not be familiar with his obligations under the 2011 Act.

It's just bizarre.

Not that it being bizarre makes it untrue, of course.

Its simply a case of there often not being sufficient resources to follow it. At present you can have one car covering entire districts in dublin and a backlog of calls to go to. Finding a working breathalyser in one hour is often not as simple as radioing a traffic car. This is the simple practicality of it. If the garda thinks the person is drunk they will simply arrest them.

hcass

conorh91 wrote: »

I agree with the previous posts in principle, but the whole narrative is just so *obviously* wrong in law that it makes me think there has to be more to this story.

In my experience, the way it usually works is that Gardaí usually put lawyers right on the obligations of the former.

I find it bordering on the incomprehensible that a Garda would not be familiar with his obligations under the 2011 Act.

It's just bizarre.

Not that it being bizarre makes it untrue, of course.

I agree with you - it is totally bizarre - but I promise you this really happened as I have said it happened. I have spoken to the Sergeant and he told the reason there was no breathalyzer was because they recently got a new squad car and the breathalyzer was not taken form the old one and put into the new one. Which makes it sound even more ridiculous.

If nothing else I hope complaining will at least make sure the breathalyzer is moved to the new squad car so this doesn't happen again.

conorh91

Little CuChulainn wrote: »

Finding a working breathalyser in one hour is often not as simple as radioing a traffic car.

That is absolutely irrelevant. There is no discretion. The section creates an obligation.

They take the specimen at the roadside, they require the driver to accompany them to the station, or they wait at the roadside for up to an hour for a breathalyzer to arrive.

It isn't within the rights of individual Gardaí to choose not to comply.

Little CuChulainn

conorh91 wrote: »

That is absolutely irrelevant. There is no discretion. The section creates an obligation.

They take the specimen at the roadside, they require the driver to accompany them to the station, or they wait at the roadside for up to an hour for a breathalyzer to arrive.

It isn't within the right of individual Gardaí to choose not to comply.

I'm aware it creates an obligation, although you have added an additional one. They can require them to take a sample or wait for up to an hour for a breathalyser. If they cannot obtain a breathalyser within that hour they cannot comply with the obligation.

hcass

Little CuChulainn wrote: »

I'm aware it creates an obligation, although you have added an additional one. They can require them to take a sample or wait for up to an hour for a breathalyser. If they cannot obtain a breathalyser within that hour they cannot comply with the obligation.

This happened in Dublin - so there was no way it would have taken an hour to get a breathalyzer.

Pro Hoc Vice

conorh91 wrote: »

That is absolutely irrelevant. There is no discretion. The section creates an obligation.

They take the specimen at the roadside, they require the driver to accompany them to the station, or they wait at the roadside for up to an hour for a breathalyzer to arrive.

It isn't within the rights of individual Gardaí to choose not to comply.

If a member knew that a device would not be available within the hour then he should not detain the person.

Little CuChulainn

hcass wrote: »

This happened in Dublin - so there was no way it would have taken an hour to get a breathalyzer.

Yes there is. I have seen it happen a number of times.

mikeyjames9

hcass wrote: »

Spoke to the Sergeant today and was fobbed off

no surprise there

nothing can be proven and he knows it

conorh91

Little CuChulainn wrote: »

I'm aware it creates an obligation, although you have added an additional one.

No, I was just being thorough in my description of the options available, although I should probably have qualified it.

If an accident happened within a stone's throw (i.e. in the vicinity) of a suitable Garda station, there's no reason why a Garda couldn't require the driver to accompany him to the station, and there provide a specimen of his breath.

Anyway, like I said, discussion of Garda resources is not particularly relevant here. The Act doesn't say "sure, go on the radio and see what's available". It just doesn't arise.

Little CuChulainn

conorh91 wrote: »

No, I was just being thorough in my description of the options available, although I should probably have qualified it.

If an accident happened within a stone's throw (i.e. in the vicinity) of a suitable Garda station, there's no reason why a Garda couldn't require the driver to accompany him to the station, and there provide a specimen of his breath.

Anyway, like I said, discussion of Garda resources is not particularly relevant here. The Act doesn't say "sure, go on the radio and see what's available". It just doesn't arise.

Of course it's relevant. You cannot comply with an obligation if it's impossible for you to do so.

tayto lover

Why is every Garda car not checked daily to make sure that it contains a working breath test device?
It seems neglectful not to do so.

conorh91

Little CuChulainn wrote: »

Of course it's relevant. You cannot comply with an obligation if it's impossible for you to do so.

Yes but the threshold for "impossible" is considerably higher than merely being busy. The section clearly sets out what is expected of of AGS in these circumstances. I'm not sure what else there is to say on that.

Little CuChulainn

conorh91 wrote: »

Yes but the threshold for "impossible" is considerably higher than merely being busy. The section clearly sets out what is expected of of AGS in these circumstances. I'm not sure what else there is to say on that.

Sure you can blame the organisation, but not the individual garda.

conorh91

Sometimes yes, sometimes no.

I'm sympathetic to Gardaí, who too often find themselves upholding the rights and freedoms of the sort of humans who should do us all a favour by taking a running jump.

But in circumstances like the OP's, this isn't about Gardaí. The primary concern here is the safety of road users. It is so important to us as a society that we have enshrined this vital social policy in law by making rigorous demands of drivers who cause injuries. These are serious obligations.

In creating these obligations, society has raised the importance of this social objective above and beyond the general aim of detecting lawlessness.

The importance it has been given needs to be respected by politicians and AGS management, but also by individual Gardaí.

Zambia

Jesus you want your pound of flesh op.

Bepolite

Zambia wrote: »

Jesus you want your pound of flesh op.

If you got knocked down by what you were convinced was a drunk driver; wouldn't you?

Santa Cruz

He's admitted full liability and you will get your compo. Move on

Bepolite

Santa Cruz wrote: »

He's admitted full liability and you will get your compo. Move on

Thats a blinkered attitude to say the least. If it was me, and I knew the guy had been drinking, I'd want him off the road before the inevitable happens and he kills someone.

Pro Hoc Vice

I have been thinking of this thread a private prosecution under section 4 (1) of the road traffic act 2010 would be possible. I'm not saying it would be successful, but a good road traffic solicitor can advice on same.

Little CuChulainn

Pro Hoc Vice wrote: »

I have been thinking of this thread a private prosecution under section 4 (1) of the road traffic act 2010 would be possible. I'm not saying it would be successful, but a good road traffic solicitor can advice on same.

What happens when the Garda witness says he did not smell any alcohol?

Pro Hoc Vice

Little CuChulainn wrote: »

What happens when the Garda witness says he did not smell any alcohol?

I said "I'm not saying it would be successful" and I do not know what evidence the member will give I can only assume the OP will give the evidence that he smelt drink and that the crash happened. If the Garda gives the evidence he smelt nothing then it's a decision for the judge.

The OP only asked what could he do I have given him an option, I also told him to seek the advice of a solicitor.

BTW how do you know what evidence the member will give.

timmywex

tayto lover wrote: »

Why is every Garda car not checked daily to make sure that it contains a working breath test device?
It seems neglectful not to do so.

Not all Gardai are trained in its use. Not all Garda cars carry the roadside tester. And indeed not all stations have breathalysers either so the station near where the incident happened could be one...

Pro Hoc Vice

timmywex wrote: »

Not all Gardai are trained in its use. Not all Garda cars carry the roadside tester. And indeed not all stations have breathalysers either so the station near where the incident happened could be one...

All stations can call a doctor to do a blood or urine test.

dharn

Op. If the driver was convicted of drunken driving, the insurance company could refuse to pay your claim , so just make sure you are well covered for pain and suffering, get a good solicitor ,he's paying !

Pro Hoc Vice

dharn wrote: »

Op. If the driver was convicted of drunken driving, the insurance company could refuse to pay your claim , so just make sure you are well covered for pain and suffering, get a good solicitor ,he's paying !

Bull****! The insurance company can not refuse to pay a third party claim full stop and I have heard this bull before it was wrong to say so then and remains wrong now.

Little CuChulainn

Pro Hoc Vice wrote: »

All stations can call a doctor to do a blood or urine test.

That's only relevant following an actual arrest

Pro Hoc Vice

Little CuChulainn wrote: »

That's only relevant following an actual arrest

Which can be done with out a roadside test. Once a member forms the opinion that the person is intoxicated from drink or drugs and is incapable of having proper control.

hcass

Santa Cruz wrote: »

He's admitted full liability and you will get your compo. Move on

Yeah cos that's clearly all I care about - compo - do you think I'd be asking these questions if all I cared about was money. No! I'd be at home rubbing my hands together happy that I got hit by a car, lived to tell the tale and make a few bob. But I think a wrong happened here and I don't want it to happen again - if that's my pound of flesh then fine - yeah I want the pound of f*king flesh.

dharn

Pro Hoc Vice wrote: »

Bull****! The insurance company can not refuse to pay a third party claim full stop and I have heard this bull before it was wrong to say so then and remains wrong now.

Could,... ultimately they will pay but im pretty sure a drink driving prosecution would delay the process hugely, insurance companies like nothing better than an excuse to delay payment