Good news for drink drivers

Little CuChulainn · 21-09-2015 3:23pm #1

http://www.thejournal.ie/courts-alcohol-test-language-2343812-Sep2015/

I wonder how many cases this will affect. All breathalyser cases maybe?

endacl · 21-09-2015 3:25pm

Mihai Avadenei? Doesn't sound like a gaelgeoir...

Jawgap · 21-09-2015 3:27pm

Little CuChulainn wrote: »

http://www.thejournal.ie/courts-alcohol-test-language-2343812-Sep2015/

I wonder how many cases this will affect. All breathalyser cases maybe?

None hopefully.

I'd imagine it will be appealed.

HeidiHeidi · 21-09-2015 3:29pm

When and how did the law get so completely divorced from reality and common sense?

Ken. · 21-09-2015 3:36pm

The sooner the better that poxy fücking language stops ruining things the better. I hope if the guy drink drives again and kills someone the judge can live with himself.

Robbo · 21-09-2015 3:49pm

Comin' over here, stealing our love for strictly applied language rights when we've been caught rotten...

Fred Swanson · 21-09-2015 3:55pm

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Little CuChulainn · 21-09-2015 4:01pm

Fred Swanson wrote: »

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Retrospectively?

Gatling · 21-09-2015 4:32pm

So a Romanian national gets caught speeding and drunk driving and because of the reading wasn't given in English and irish he gets to walk along with several hundred others including a senator

Fred Swanson · 21-09-2015 4:34pm

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Triangla · 21-09-2015 4:36pm

I blame the muppets who couldn't issue a bilingual document as required by law.

If they did their jobs this wouldn't be an issue.

Nichard Dixon · 21-09-2015 4:41pm

ken wrote: »

The sooner the better that poxy fücking language stops ruining things the better. I hope if the guy drink drives again and kills someone the judge can live with himself.

The judge has no choice but to follow the law. If the legislation required a particular format why did the printout not comply with this? Some anti Irish colonialist might have made this decision, yet everyone is ranting about the judge.

Little CuChulainn · 21-09-2015 4:49pm

Triangla wrote: »

I blame the muppets who couldn't issue a bilingual document as required by law.

If they did their jobs this wouldn't be an issue.

Nichard Dixon wrote: »

The judge has no choice but to follow the law. If the legislation required a particular format why did the printout not comply with this? Some anti Irish colonialist might have made this decision, yet everyone is ranting about the judge.

The judge has made a rule. You can't expect the RSA to have predicted him to make this rule. They thought they had done enough to comply with the requirements for the Irish language.

4ensic15 · 22-09-2015 7:22am

Little CuChulainn wrote: »

The judge has made a rule. You can't expect the RSA to have predicted him to make this rule. They thought they had done enough to comply with the requirements for the Irish language.

The judge has made a ruling, not a rule. He has simply said what the law is. As for the RSA, ignorance of the law is no defence.

johnxcassidy · 22-09-2015 7:31am

I got caught drink driving last month and got 3 points on my license and already paid a €200 fine. Could I retrospectively appeal this?

4ensic15 · 22-09-2015 7:33am

johnxcassidy wrote: »

I got caught drink driving last month and got 3 points on my license and already paid a €200 fine. Could I retrospectively appeal this?

No. You can't have your cake and eat it. You could have brought exactly the same challenge but decided not to.

Mr E · 22-09-2015 7:33am

I heard a legal expert on Newstalk this morning and he said no. It will be very difficult to appeal anything that has already gone through the courts. This will mainly affect people with cases pending.

johnxcassidy · 22-09-2015 7:43am

4ensic15 wrote: »

No. You can't have your cake and eat it. You could have brought exactly the same challenge but decided not to.

It's not that I decided not to. If I had known I could have I would have decided to. So I feel that legally that is a valid point.

El_Duderino 09 · 22-09-2015 7:48am

Little CuChulainn wrote:

The judge has made a rule. You can't expect the RSA to have predicted him to make this rule. They thought they had done enough to comply with the requirements for the Irish language.

And now they know they weren't doing enough to be compliant. Now they can adjust their practice to comply with the law and get back to their job.

I imagine that a good legal process will find problems and fix them. 1 step back and 2 steps forward

4ensic15 · 22-09-2015 7:55am

johnxcassidy wrote: »

It's not that I decided not to. If I had known I could have I would have decided to. So I feel that legally that is a valid point.

Ignorance of the law is no excuse.

Little CuChulainn · 22-09-2015 8:02am

4ensic15 wrote: »

The judge has made a ruling, not a rule. He has simply said what the law is. As for the RSA, ignorance of the law is no defence.

And another judge might have ruled differently on it. Ignorance of the law is a pretty good excuse when that law has not yet been developed fully.

Mr E wrote: »

I heard a legal expert on Newstalk this morning and he said no. It will be very difficult to appeal anything that has already gone through the courts. This will mainly affect people with cases pending.

Which is likely a lot.

Peregrinus · 22-09-2015 8:35am

johnxcassidy wrote: »

It's not that I decided not to. If I had known I could have I would have decided to. So I feel that legally that is a valid point.

Exactly the same information was available to you and to him. He was motivated, for whatever reason, to dig more deeply, find an argument and run with it; you were not.

Part of any workable legal system is that it cases should conclude in a definite and settled result. The fact that you realise, on the way home from court, that if only you had said such-and-such the outcome might have been different is not, in itself, grounds for reopening your case after it has concluded. STill less is it grounds if you only find out about that killer argument a month after your case has concluded.

It would be different if the prosecution had deliberately withheld evidence that might be helpful to you, or something of the kind. But there is no factor like that here. There was nothing to stop you running the argument that he ran.

ohnonotgmail · 22-09-2015 9:09am

johnxcassidy wrote: »

It's not that I decided not to. If I had known I could have I would have decided to. So I feel that legally that is a valid point.

you were just unlucky that this guy had a better solicitor than you.

seamus · 22-09-2015 9:18am

Little CuChulainn wrote: »

The judge has made a rule. You can't expect the RSA to have predicted him to make this rule. They thought they had done enough to comply with the requirements for the Irish language.

As others have said, the judge didn't make the rule, the minister did back in 2011. The machine(s) that do the printout don't conform to the requirements of the law. The judge is simply upholding the challenge based on this fact.

To an extent it would be like an employer giving you a number written on a napkin and claiming it to be a legal contract of employment.

If it doesn't contain the information as set out in the law, then it's not a valid statement.

Exactly the same information was available to you and to him. He was motivated, for whatever reason, to dig more deeply, find an argument and run with it; you were not.

Interesting that this requirement has been in place for a number of years and this is the first solicitor to spot the issue. Maybe only some machines are misconfigured?

BoatMad · 22-09-2015 9:54am

legislation signed this morning to make the a notice in English OR irish acceptable, presumably the scroat will be now prosecuted

Fred Swanson · 22-09-2015 10:00am

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BoatMad · 22-09-2015 10:03am

Fred Swanson wrote: »

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why not , the notice is now valid under the new legislation

seamus · 22-09-2015 10:03am

BoatMad wrote: »

legislation signed this morning to make the a notice in English OR irish acceptable, presumably the scroat will be now prosecuted

Retroactive legislation is unconstitutional. The evidential standards are those that existed at the time, not what exists now.

Fred Swanson · 22-09-2015 10:03am

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BoatMad · 22-09-2015 10:06am

Fred Swanson wrote: »

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yes but surely the prosecution case can be entered into the court again, hence its not retrospective as the prosecution is taking place under the new law. in effect he can be re-arrested

AlanG · 22-09-2015 10:08am

Little CuChulainn wrote: »

The judge has made a rule. You can't expect the RSA to have predicted him to make this rule. They thought they had done enough to comply with the requirements for the Irish language.

The judge basically said there was no confusion as to the law. This is not a loophole, it is a case of people who had a job to do not doing it correctly.

The law and the language are not to blame here, it is simply a case of Garda either not being instructed correctly or not following their instructions. I would imagine the fault lies with the legal advisers to An Garda.

seamus · 22-09-2015 10:08am

BoatMad wrote: »

yes but surely the prosecution case can be entered into the court again, hence its not retrospective as the prosecution is taking place under the new law. in effect he can be re-arrested

How do you retrospectively prove he was drunk without a valid printout?

AlanG · 22-09-2015 10:10am

BoatMad wrote: »

yes but surely the prosecution case can be entered into the court again, hence its not retrospective as the prosecution is taking place under the new law. in effect he can be re-arrested

You cannot be charged under a new law for something you did before the law was enacted.

BoatMad · 22-09-2015 10:10am

seamus wrote: »

How do you retrospectively prove he was drunk without a valid printout?

because the printout is now valid , i.e. on the day its produced in court

BoatMad · 22-09-2015 10:12am

AlanG wrote: »

You cannot be charged under a new law for something you did before the law was enacted.

thats not correct , the offence was illegal and is still illegal, The issue was a specific issue involving the presentation of notice.

that issue has been resolved, the issue of drink driving still stands and was not legal on the date in question

seamus · 22-09-2015 10:13am

BoatMad wrote: »

because the printout is now valid , i.e. on the day its produced in court

Yes, but it would need to be a new printout based on the current law.

The law which applies is the law as it was at the time the offence was committed.

BoatMad · 22-09-2015 10:17am

seamus wrote: »

Yes, but it would need to be a new printout based on the current law.

The law which applies is the law as it was at the time the offence was committed.

we shall see , Ill ask a lawyer friend

CIARAN_BOYLE · 22-09-2015 10:19am

2 key reasons he can't be prosecuted

1. double jeopardy ie you cant be tried twice for the same crime
2. legislation can't be retroactive

Uriel. · 22-09-2015 10:28am

BoatMad wrote: »

we shall see , Ill ask a lawyer friend

Saul? or Lionel Hutz?

BoatMad · 22-09-2015 10:29am

CIARAN_BOYLE wrote: »

2 key reasons he can't be prosecuted

1. double jeopardy ie you cant be tried twice for the same crime
2. legislation can't be retroactive

i dont believe we have any double jeopardy rules in this state , your watching too much NCIS :P we do have in certain cases a statue of limitations etc

The legislation corrects a flaw in the admissibility of evidence. its not that drunk driving was made legal today and wasn't yesterday . Surely a new prosecution can now be brought with the test results admitted under the new amended law.

I mean this cases adjourned for example , will be prosecuted under the new law, it seems

The district court acts also allow minor errors and omissions to be corrected ( for example if they misspell you name or get your address incorrect ), I see the state is now challenging the ruling of the high court, if that is overturned the scroat can definitely be prosecuted

Fred Swanson · 22-09-2015 10:30am

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seamus · 22-09-2015 10:37am

BoatMad wrote: »

i dont believe we have any double jeopardy rules in this state , your watching too much NCIS :P we do have in certain cases a statue of limitations etc

We do indeed have a double jeopardy rule, but it was updated in 2010 to allow a re-trial to be applied for if "new and compelling" evidence has come to light and it's believed to be in the public interest to try the person again.

So it wouldn't apply here anyway.

BoatMad · 22-09-2015 10:44am

seamus wrote: »

We do indeed have a double jeopardy rule, but it was updated in 2010 to allow a re-trial to be applied for if "new and compelling" evidence has come to light and it's believed to be in the public interest to try the person again.

So it wouldn't apply here anyway.

I believe it only apples to criminal cases,

anyway , the new evidence would be an admissible test result

Fred Swanson · 22-09-2015 10:45am

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BoatMad · 22-09-2015 10:48am

Fred Swanson wrote: »

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since the evidence was not admissible, surely it is now " new evidence:

I mean he was dismissed on the basis that the gardai could not prove his bllod sample as that evidence was inadmissible, Hence it wasn't evidence at all

Now it is admissible evidence, ?

Fred Swanson · 22-09-2015 10:51am

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seamus · 22-09-2015 10:56am

BoatMad wrote: »

since the evidence was not admissible, surely it is now " new evidence:

I mean he was dismissed on the basis that the gardai could not prove his bllod sample as that evidence was inadmissible, Hence it wasn't evidence at all

Now it is admissible evidence, ?

Irrelevant for the purposes of a re-trial.

“ new and compelling evidence”, in relation to a person, means evidence—

(a) which was not adduced by the prosecution in the proceedings in respect of which the person was acquitted (nor in any appeal proceedings to which the original proceedings related), and

(b) which could not, with the exercise of due diligence, have been adduced during those proceedings, and

(c) is evidence which—

(i) is reliable,

(ii) is of significant probative value, and

(iii) is such that when taken together with all the other evidence adduced in the proceedings concerned, a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned;

In this case, the statement was already presented by the prosecution as evidence. Inadmissible or not, it's still not "new and compelling" as per the requirement of the law.

Claw Hammer · 22-09-2015 11:04am

BoatMad wrote: »

yes but surely the prosecution case can be entered into the court again, hence its not retrospective as the prosecution is taking place under the new law. in effect he can be re-arrested

The case is still before the courts. It was a case stated so will go back to the District Court. The court will rule that the evidence offered by the prosecution is inadmissable per the High Court and will dismiss the case on the merits. Legislation cannot affect a case at hearing as it would be a breach of the separation of powers. e.g the Sinn Fein funds case. Buckley v Ag in the 1940's.

BoatMad · 22-09-2015 11:05am

Claw Hammer wrote: »

The case is still before the courts. It was a case stated so will go back to the District Court. The court will rule that the evidence offered by the prosecution is inadmissable per the High Court and will dismiss the case on the merits. Legislation cannot affect a case at hearing as it would be a breach of the separation of powers. e.g the Sinn Fein funds case. Buckley v Ag in the 1940's.

if its before the courts, with the legislation now in place, the evidence is admissible ??

Fred Swanson · 22-09-2015 11:07am

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NUTLEY BOY · 22-09-2015 11:07am

BoatMad wrote: »

we shall see , Ill ask a lawyer friend

Come at it another way.

At the time that the accused was dealt with by the Gardaí there was a defect in the procedures that were executed. That defect meant that one of the legal requirements for a valid prosecution was not satisfied. Therefore, the prosecution was effectively invalidated. That was a finding of law based upon the facts of the case.

The law has now been tidied up to eliminate the problem.

However, the law that applies to the defendant is that which operated at the time of the alleged offence. Others have already explained double-jeopardy and retrospective / retroactive legislation.

The point that needs to be understood is that the new legislation can never remedy the defect in the defendant's prosecution. The prosecution defect in this case is permanent and utterly incapable of correction.

This is not like to a case where a conviction is overturned by an appeal court which orders a retrial which can eliminate a defect in the original trial. (This assumes that the original defect is one capable of remedy by retrial.)

Good news for drink drivers

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