can a garda give you a fixed penalty notice in the post after they said it was a warn

jasonrwc

4ensic15 wrote: »

If they said it was a warning, you must have been doing something wrong!

But can't they then change their mind later that day and say it's not a warning gimme a fine and penalty points without notifying me?

Peregrinus

jasonrwc wrote: »

But can't they then change their mind later that day and say it's not a warning gimme a fine and penalty points without notifying me?

Yes, why not?

What would be the point of imposing a notification requirement? If, instead of sending out the penalty notice on Tuesday they wrote to you saying they had changed their minds and intended to issue a penalty notice, and followed that up with a penalty notice on Wednesday, how would your situation be any better? What would be the point of the advance notification, and how are you any worse off by not having got it?

jasonrwc

Peregrinus wrote: »

Yes, why not?

What would be the point of imposing a notification requirement? If, instead of sending out the penalty notice on Tuesday they wrote to you saying they had changed their minds and intended to issue a penalty notice, and followed that up with a penalty notice on Wednesday, how would your situation be any better? What would be the point of the advance notification, and how are you any worse off by not having got it?

Well it's not advanced notice I'm looking for I'm looking for the to treat it the way they said they were treating it instead of going off the rest of the day not getting enough people for stuff then deciding, you know what that lad earlier it's not gonna be a warning in gonna do him too!!

jasonrwc

At the end of the day I see the difference between what the garda said and what he did as him lying.

Peregrinus

It's called prosecutorial discretion. The authority charged with enforcing a law has a wide measure of discretion about how far to enforce it - do nothing; issue a warning; issue a penalty notice; prosecute in court; etc.

Your beef here is that they indicated that they were inclined to take one of the courses open to them, and then took another. Your position is not particularly strong; there has never been a rule that says authorities must take an instant decision about how to act, and then stick to it for ever. But you might have grounds for objecting if, as a result of their telling you that you would only receive a warning, you acted on that representation and, e.g., disposed of relevant evidence which now leaves you less well-positioned to contest the penalty notice.

Short of something like that, though, you have no general right not to be annoyed, irritated or disappointed by their change of plan.

Peregrinus

jasonrwc wrote: »

At the end of the day I see the difference between what the garda said and what he did as him lying.

Only if the garda knew, when he said he would only issue a warning, that in fact he was going to issue a penalty notice.

A change of mind is not a lie.

sexmag

"Peregrinus wrote: »

".But you might have grounds for objecting if, as a result of their telling you that you would only receive a warning, you acted on that representation and, e.g., disposed of relevant evidence which now leaves you less well-positioned to contest the penalty notice.

Short of something like that, though, you have no general right not to be annoyed, irritated or disappointed by their change of plan.

That's a good point but how does one prove that they no longer have proof they once had? Kind of a paradox

Peregrinus

sexmag wrote: »

That's a good point but how does one prove that they no longer have proof they once had? Kind of a paradox

It's a long shot, I know, but you might have, e.g., a case where guards at the scene of some incident said they would only be issuing a warning, so you didn't ask a bystander who was a witness for their name and address, and now you can't mount a proper defence to the charge because you can't call the witness.

But the question of how you prove that you relied on "it'll only be a warning" to your detriment doesn't arise unless you did, in fact, rely on that to your detriment, and the OP doesn't suggest that he did. I get that he's pissed that the guards said they would do A but then went ahead and did B, but he has no legal remedy unless he is worse off than he would be if they had gone ahead and done B without saying anything at all about A.

Until the OP points to some way in which he is worse off, we don't have to worry about how he proves that he is worse off in that way.

jasonrwc

Peregrinus wrote: »

Only if the garda knew, when he said he would only issue a warning, that in fact he was going to issue a penalty notice.

A change of mind is not a lie.

well if the above isn't true and the garda didn't know he was going to change his mind then some other outside factor that was not there during the incident has changed it on him which is surely wrong?

Hooked

I just stumbled across this thread and can't understand how the gardaí stopped the OP in the first place...

If it was a narrow road, with cars parked in the left lane, and the oncoming car was initially out of sight, around the next corner... what was he/she to do?

Sounds awful petty to me... I'd be fuming

4ensic15

jasonrwc wrote: »

well if the above isn't true and the garda didn't know he was going to change his mind then some other outside factor that was not there during the incident has changed it on him which is surely wrong?

The guards must have information about your other activities, which led to them searching the car. That is what the warning was about, not your bad driving. You should count yourself lucky and forget about the moralising.

jasonrwc

4ensic15 wrote: »

The guards must have information about your other activities, which led to them searching the car. That is what the warning was about, not your bad driving. You should count yourself lucky and forget about the moralising.

Information about my other activities?? I'm a professional that has never been in trouble with the garda before except for a speeding ticket a few years ago. I very much doubt they have any clue who I am!!!

Greybottle

The Gardai have every right to send you the ticket after they give you a warning. It's not nice behavior on their part, but they can still do this.

You have 2 choices: Pay the fine and take the points. Or. Go to court and fight your case.

If you decide to go to court, you can hire a solicitor, but expect to pay €250 minimum, if it's only yourself that he is representing on the day.
You can also represent yourself, but are potentially up against 3 Gardai.

Bring photos of the street as it is on the day of the incident, with cars blocking one side of the road. There is a possibility that the Gardai will not show up in court to give evidence and it will be thrown out. Going to court costs you nothing, but may involve an increased fine or increase in penalty points if you lose.

You could also try to contact the Garda who issued the fine, get him in a conversation and ask what alternative you had to the way you drove and if there is any reason why he felt the need to search you. If you have a clean record and are an #upstanding member of society' like most of us, then he may be less likely to show up in court.

I'm not sure if they can pull the summons or the points anymore, or how reluctant that they are to do this.

Either way, do not ignore the summons and try to engage with the Gardai and judges as politely as you can, which may be difficult if you feel aggrieved by this.

_Brian

Common enough tactic.
It avoids grief and haggling roadside.

Take your details, warn you to drive more carefully in the future, points and fine follow in the post.

If your stopped for an offence that carries points you should always expect they will arrive in the post.

Peregrinus

As a matter of interest, what offence is named on the fixed penalty notice?

jasonrwc

Peregrinus wrote: »

As a matter of interest, what offence is named on the fixed penalty notice?

Driving without reasonable consideration in contrast to section 5 a

Kolido

Genuine question, as I don't drive, but if you get a fine after getting stopped, would the Garda not need to get your signature. Someone mentioned you don't have evidence that the Garda only gave you a warning, but would they have evidence they pulled you over?

tobdom

How long have you your current car? Did you buy it privately?

I wonder if it's somehow your car that caused this 'trouble' for you, known to the Gardai like...... it's not standard practice for them to go searching every car they stop

Peregrinus

OK. This is a fairly minor offence, well below dangerous driving or careless driving. The full offence is "a person shall not drive a vehicle in a public place without reasonable consideration for other persons using the place"; it does require that there should have been some other road user who was inconvenienced or disregarded by your driving.

If the only people present at the scene were you and the guards, if this goes to court it seems to me that the the guards must say that your driving inconvenienced them - e.g. not only that you had crossed the centre line in order to get past some parked cars, but that you did so in circumstances that forced them to slow down or stop, that either you could see them or you crossed the centre line so close to a blind corner that you could not have known if other traffic was approaching.

Be honest, set your feelings of injustice and irritation aside, and imagine that you are the guard prosecuting this case, and that you want a conviction. What are you going to say to convict jasonwrc of driving without reasonable consideration? Well, that's the case you are likely to face if you take this to court.

GM228

Peregrinus wrote: »

It's a long shot, I know, but you might have, e.g., a case where guards at the scene of some incident said they would only be issuing a warning, so you didn't ask a bystander who was a witness for their name and address, and now you can't mount a proper defence to the charge because you can't call the witness.

But the question of how you prove that you relied on "it'll only be a warning" to your detriment doesn't arise unless you did, in fact, rely on that to your detriment, and the OP doesn't suggest that he did. I get that he's pissed that the guards said they would do A but then went ahead and did B, but he has no legal remedy unless he is worse off than he would be if they had gone ahead and done B without saying anything at all about A.

Until the OP points to some way in which he is worse off, we don't have to worry about how he proves that he is worse off in that way.

I'm not sure prove (which would be on the balance of probabilities) is the correct term here.

It's probably more accurate to say you must raise a doubt as to weather such a move prejudiced you, you don't prove it, you just need to raise the doubt and create an uncertainty of a sound prosecution. The prosecutor would then need to rebut.

That's certainly the way it was put to me before when I discussed discretion in a similar manner with my brother who by the way has had one or two people try to raise such as a defence against him, needless to say it was never entertained, to note though in such cases however he insists he did inform them they would receive a FCPN etc.

Now for some devil's advocate, if a Guard does however state he told the person they were to get a caution only then I wonder (and this is really stretching it) could an issue around fair procedures/fndamental fairness/due process arise I wonder?

sexmag

GM228 wrote: »

Now for some devil's advocate, if a Guard does however state he told the person they were to get a caution only then I wonder (and this is really stretching it) could an issue around fair procedures/fndamental fairness/due process arise I wonder?

Most judges will side with a guard provided they believe they were doing their job to the utmost of their ability with integrity. If a guard admits they said this but did that then a judge will be inclined to allow the defendent go based on fairness, provided it was as minor of an infringment as op put to us

Peregrinus

Why is it unfair to the defendant? I get that it's disappointing, but why "unfair"?

Diemos

I've had this happen to me twice, pulled over the first time and at a check point the second time.
I had never dealt with the police before, had no penalty points and everything in order.
First time I panicked and paid up before even thinking about fighting it.
Second time I fought it, cop never showed up in court. I had a feeling she wouldn't, I had agreed to meet her a number of times, at the time I was living just around the corner from the police station so it was easy for me to come and go, but she never showed up for one of them either.

The first instance is was my word against the cops, the second my tax was out by days, but I had been trying to get the car taxed but it failed the test, I showed her the test failure, the confirmation for the earliest re-test, the recipets for the work done to get the car past the test. The car passed, taxed and I showed up at the police station within 10 days with the tax and test certs as instructed.
By the letter of the law I was driving with my tax out, but it was the fact that neither of them had the balls to say to my face that they were going to ticket me that pissed me off.

Take the advice of Peregrinus above, think of it from the other side, if you have think a garda will take the time out to represent that case in court then pay up. If you think they wont and you want to fight it, then turn up yourself, but it is a gamble.
It worked for me.
Good luck.

_Brian

Peregrinus wrote: »

OK. This is a fairly minor offence, well below dangerous driving or careless driving. .

That’s a pretty big leap considering we only have a recount from one side of the story. I drive for a living, been driving for over 25 years and in that time came across all sorts on the roads and plenty of stops by guards.

My experience is that the guards only throw out this sort of conviction when there is some justification for it. I’ve nothing against OP, but overall I’ve only found the guards on the road to be professionals.

sexmag

Peregrinus wrote: »

Why is it unfair to the defendant? I get that it's disappointing, but why "unfair"?

Because the Guard is then placing reasonable doubt to his abilites.

Admitting he lied corrupts the whole case on if the defendent even did it or not, in my opninion

sbsquarepants

You've got the option to refuse to pay and take your chances in court - but I wouldn't if I was you, you will loose and the points be doubled (not sure what happens the fine).

Some cops are just arseholes - suck it up and get on with things. It's not fair, but that's life for you! Some battles just aren't worth fighting.

Peregrinus

_Brian wrote: »

That’s a pretty big leap considering we only have a recount from one side of the story. I drive for a living, been driving for over 25 years and in that time came across all sorts on the roads and plenty of stops by guards.

My experience is that the guards only throw out this sort of conviction when there is some justification for it. I’ve nothing against OP, but overall I’ve only found the guards on the road to be professionals.

My point is that the guards have issued a fixed penalty notice which only specifies the minor offence of driving without reasonable consideration. If he takes this to court, that is the only charge he will face.

Peregrinus

sexmag wrote: »

Because the Guard is then placing reasonable doubt to his abilites.

Admitting he lied corrupts the whole case on if the defendent even did it or not, in my opninion

There is no admission of a lie.

GM228

sexmag wrote: »

Because the Guard is then placing reasonable doubt to his abilites.

Admitting he lied corrupts the whole case on if the defendent even did it or not, in my opninion

How on earth is he creating a reasonable doubt to his abilities?

Again there is no evidenve of a lie, people change their minds all the time, reflection is a wonderful thing.

GM228

sbsquarepants wrote: »

Some cops people are just arseholes

That goes both ways and applies to every profession, but most are decent fair people with a bit of cop (pardon the pun) on.