Gardai breathalyzer powers when not driving

DivingDuck · 09-03-2017 09:18PM #1

Strange story told to me tonight by a mate of mine, and I'm wondering now about the legality of it. NOT seeking legal advice, as he has no intention to pursue anything, but it's bugging the hell out of me and I'm wondering what you folks might make of it.

Some months ago, chap came home late one night from a funeral in a bit of distress and crashed his car into his own front wall. Neighbour came out, and, in the dark, assumed that he'd also hit the neighbour's own car parked opposite. Mate had not, and told neighbour to go eff himself before getting out of the car and going into his own house where he proceeded to fall asleep on the sofa. No drink had been taken; the man in question was just extremely upset and can be a bit cantankerous and careless at the best of times.

An hour or two later, Gards arrived at the door saying they'd had a report of drunk driving and, having seen the busted-up wall and dent in the front of the car, demanded my mate do a breathalyzer test. Having nothing to hide, he did, and the test came back negative. Police went on their way. Neighbour apologised in the morning when he saw that his own car had not, in fact, been damaged.

My questions—

1. Can the police force a breathalyzer test if you are not in the vicinity of your car and not seen by them to be driving? Aside the neighbour's word, the car could have been driven by his wife, son, etc. during the incident.

2. If my friend hadn't been downstairs to hear the door, what would have happened? Could they force entry to test him?

I found it very strange that they were able to demand a breath test from a man who had not been in his car for over an hour on the strength of a report from someone else saying he had been driving. What powers do they have in this situation?

Samuel T. Cogley · 09-03-2017 10:58PM

The guards demand things all the time. It doesn't mean one is compelled to comply, but if you do you do.

benjilxp · 09-03-2017 11:00PM

DivingDuck wrote: »

Strange story told to me tonight by a mate of mine, and I'm wondering now about the legality of it. NOT seeking legal advice, as he has no intention to pursue anything, but it's bugging the hell out of me and I'm wondering what you folks might make of it.

Some months ago, chap came home late one night from a funeral in a bit of distress and crashed his car into his own front wall. Neighbour came out, and, in the dark, assumed that he'd also hit the neighbour's own car parked opposite. Mate had not, and told neighbour to go eff himself before getting out of the car and going into his own house where he proceeded to fall asleep on the sofa. No drink had been taken; the man in question was just extremely upset and can be a bit cantankerous and careless at the best of times.

An hour or two later, Gards arrived at the door saying they'd had a report of drunk driving and, having seen the busted-up wall and dent in the front of the car, demanded my mate do a breathalyzer test. Having nothing to hide, he did, and the test came back negative. Police went on their way. Neighbour apologised in the morning when he saw that his own car had not, in fact, been damaged.

My questions—

1. Can the police force a breathalyzer test if you are not in the vicinity of your car and not seen by them to be driving? Aside the neighbour's word, the car could have been driven by his wife, son, etc. during the incident.

2. If my friend hadn't been downstairs to hear the door, what would have happened? Could they force entry to test him?

I found it very strange that they were able to demand a breath test from a man who had not been in his car for over an hour on the strength of a report from someone else saying he had been driving. What powers do they have in this situation?

Mod.
Keep it civil pls.

hungry hypno toad · 09-03-2017 11:00PM

Shouldn't have been driving if he was 'distressed'. Thankfully he didn't kill someone.

listermint · 09-03-2017 11:03PM

'mate'

Ok

Right let's put into context for you. Let's say 'he' was drinking and hit your car as a neighbour. Would you be happy that your pissed neighbour didn't get breathlised after knocking your car and front wall.?

Yeah doubt it.

benjilxp · 09-03-2017 11:34PM

listermint wrote: »

'mate'

Ok

Right let's put into context for you. Let's say 'he' was drinking and hit your car as a neighbour. Would you be happy that your pissed neighbour didn't get breathlised after knocking your car and front wall.?

Yeah doubt it.

But his car wasn't damaged so the other guy was out of order for calling the guards

willowthewisp · 09-03-2017 11:40PM

Turns out the car wasn't hit and the guy was not drinking.
But on the balance of probability there was enough to be suspicious that there could have been drink driving.

hungry hypno toad · 09-03-2017 11:56PM

Drugs?

john.han · 09-03-2017 11:59PM

Breathalyzer would be pointless a few hours after someone was driving, how would you prove they hadn't consumed alcohol in the period between getting out of the car and being tested...

lycan238 · 10-03-2017 12:07AM

I believe mandatory alcohol tests are compulsory after any and all road traffic collisions. The member of the Gardai obviously had enough suspicion that the person who they performed the breath test was indeed the driver.

In regards to the passage of time from the time of the collision to the time of the test I would at the lower end find that to be a normal amount of time maybe a little more but at the higher end two hours quite a bit of time had passed. As you said in your post the neighbour believed his car was hit and apologised the next morning when he realised his mistake.

If any of the above info is wrong I apologise but that is my opinion on the scenario presented.

GM228 · 10-03-2017 12:12AM

A member of the Gardaí can't enter a private dwelling for the purposes of gaining a preliminary breath speciman.

The requirement to gain the breath test following a collission (which is optional, not mandatory unless there is an injury or death) only applies to a person in charge of a vehicle in a public place, they can use force to enter the curtilage of a dwelling to get the breath test, but not the dwelling itself.

Victor · 10-03-2017 12:33AM

hungry hypno toad wrote: »

Drugs?

Funeral, as stated in the OP.

hungry hypno toad · 10-03-2017 12:40AM

Victor wrote: »

Funeral, as stated in the OP.

Story doesn't add up.

DivingDuck · 10-03-2017 03:51AM

lycan238 wrote: »

In regards to the passage of time from the time of the collision to the time of the test I would at the lower end find that to be a normal amount of time maybe a little more but at the higher end two hours quite a bit of time had passed.

That was my point, as well. If he had been drinking since he came home, and failed, could he be done for drink driving? I find that prospect very alarming, as there was zero proof that he had been under the influence while behind the wheel.

Maybe failing then would be enough to get you brought to the station for blood tests of some kind which would confirm how long it had been since you had the drink? I just find the idea that the police could demand a breath test from someone who had not even been confirmed as driving, an hour plus ago, to be a bit suspect.

GM228 wrote: »

A member of the Gardaí can't enter a private dwelling for the purposes of gaining a preliminary breath speciman.

The requirement to gain the breath test following a collission (which is optional, not mandatory unless there is an injury or death) only applies to a person in charge of a vehicle in a public place, they can use force to enter the curtilage of a dwelling to get the breath test, but not the dwelling itself.

A breath test isn't mandatory unless someone has died or been injured?! That can't be right, can it? If you write off someone's parked car, and you're fine, they can't force a breath test?! Doesn't seem fair at all.

At least from this I have an answer as to what would have happened if he hadn't answered the door, though, so thanks. I had wondered.

As for how believable the story is: I'm relating it as it was told to me. I only raise the issue here as I wanted to know if the Guards could force entry to your home and demand a test when no Guards had been witness to the actual driving of the vehicle, and it had been over an hour since the car was stopped.

While I have zero problems with Guards enforcing the rules of the road, I find the prospect that you can be asked to perform a test so long after you're out of the car worrying.

4ensic15 · 10-03-2017 07:21AM

DivingDuck wrote: »

That was my point, as well. If he had been drinking since he came home, and failed, could he be done for drink driving? I find that prospect very alarming, as there was zero proof that he had been under the influence while behind the wheel.

Maybe failing then would be enough to get you brought to the station for blood tests of some kind which would confirm how long it had been since you had the drink? I just find the idea that the police could demand a breath test from someone who had not even been confirmed as driving, an hour plus ago, to be a bit suspect.

A breath test isn't mandatory unless someone has died or been injured?! That can't be right, can it? If you write off someone's parked car, and you're fine, they can't force a breath test?! Doesn't seem fair at all.

At least from this I have an answer as to what would have happened if he hadn't answered the door, though, so thanks. I had wondered.

As for how believable the story is: I'm relating it as it was told to me. I only raise the issue here as I wanted to know if the Guards could force entry to your home and demand a test when no Guards had been witness to the actual driving of the vehicle, and it had been over an hour since the car was stopped.

While I have zero problems with Guards enforcing the rules of the road, I find the prospect that you can be asked to perform a test so long after you're out of the car worrying.

The guards don't have to see the person driving the vehicle. They just need to adduce evidence of driving. There could be someone who did see the driving or there might be an admission of driving.

Peregrinus · 10-03-2017 07:41AM

A guard can require you to provide a breath test if you're in charge of a vehicle and either the vehicle has been involved in an accident while you were in charge of it or the guard forms the opinion that you have been drinking.

In this case the OP's vehicle had been involved in an accident while he was in charge of it, so the guards could require him to give a breath sample.

Had he failed, that wouldn't necessarily have led to a conviction for drink-driving. The drink-driving offence is committed when you drive or attempt to drive in a public place while there is present in your body a quantity of alcohol such that, if tested within the next three hours, you're over the limit.

Suppose the test had shown that the OP was over the limit. To secure a conviction, the guards would still have needed to show that this wasn't as a result of drink taken after the accident, but to alchohol that was already in his body at the time of the accident. The OP doesn't say this, but it's highly likely that, before administering the test, the guards asked the OP "have you been drinking this evening?", and he might have answered something like "no, not at all". That would leave him in a sticky position if the test had shown he was over the limit. Or, in slightly different facts to those mentioned in the OP, the driver might have remained on the verge arguing with the neighbour, or the neighbour might have accompanied him into the house, and so the neighbour might be able to give evidence that the driver hadn't consumed any alcohol between the accident and the test an hour or so later.

Samuel T. Cogley · 10-03-2017 09:40AM

DivingDuck wrote: »

A breath test isn't mandatory unless someone has died or been injured?! That can't be right, can it? If you write off someone's parked car, and you're fine, they can't force a breath test?! Doesn't seem fair at all.

What's unfair about it? You still claim on their insurance, you're at no loss becuase of the lack of a test. It's potentially an undedected drink driver like the hundreds driving at this very second, or the second you read this post.

GM228 · 10-03-2017 11:24AM

Peregrinus wrote: »

A guard can require you to provide a breath test if you're in charge of a vehicle and either the vehicle has been involved in an accident while you were in charge of it or the guard forms the opinion that you have been drinking.

They can also perform the preliminary breath test if they form an opinion that you have committed or are committing any offence under the Road Traffic Acts 1961-2011.

Peregrinus wrote: »

In this case the OP's vehicle had been involved in an accident while he was in charge of it, so the guards could require him to give a breath sample.

In the case that the OP describes a guard can't demand a breath sample. They can enter any place including the curtilage of a dwelling, but not the dwelling itself without a warrant to gain a test.

Little CuChulainn · 10-03-2017 12:25PM

Peregrinus wrote: »

A guard can require you to provide a breath test if you're in charge of a vehicle and either the vehicle has been involved in an accident while you were in charge of it or the guard forms the opinion that you have been drinking.

In this case the OP's vehicle had been involved in an accident while he was in charge of it, so the guards could require him to give a breath sample.

Had he failed, that wouldn't necessarily have led to a conviction for drink-driving. The drink-driving offence is committed when you drive or attempt to drive in a public place while there is present in your body a quantity of alcohol such that, if tested within the next three hours, you're over the limit.

Suppose the test had shown that the OP was over the limit. To secure a conviction, the guards would still have needed to show that this wasn't as a result of drink taken after the accident, but to alchohol that was already in his body at the time of the accident. The OP doesn't say this, but it's highly likely that, before administering the test, the guards asked the OP "have you been drinking this evening?", and he might have answered something like "no, not at all". That would leave him in a sticky position if the test had shown he was over the limit. Or, in slightly different facts to those mentioned in the OP, the driver might have remained on the verge arguing with the neighbour, or the neighbour might have accompanied him into the house, and so the neighbour might be able to give evidence that the driver hadn't consumed any alcohol between the accident and the test an hour or so later.

I don't think that's right. The Gardaí need only prove that there was alcohol in his system within three hours of driving. If the driver claims they drank afterwards then it is up to them to prove that the drink they took after the driving was what put them over the limit.

Fred Swanson · 10-03-2017 12:35PM

This post has been deleted.

Little CuChulainn · 10-03-2017 12:36PM

Fred Swanson wrote: »

This post has been deleted.

No

DivingDuck · 11-03-2017 01:49AM

Peregrinus wrote: »

Suppose the test had shown that the OP was over the limit. To secure a conviction, the guards would still have needed to show that this wasn't as a result of drink taken after the accident, but to alchohol that was already in his body at the time of the accident. The OP doesn't say this, but it's highly likely that, before administering the test, the guards asked the OP "have you been drinking this evening?", and he might have answered something like "no, not at all". That would leave him in a sticky position if the test had shown he was over the limit. Or, in slightly different facts to those mentioned in the OP, the driver might have remained on the verge arguing with the neighbour, or the neighbour might have accompanied him into the house, and so the neighbour might be able to give evidence that the driver hadn't consumed any alcohol between the accident and the test an hour or so later.

As I said in my post, it wasn't me this happened to, so I don't have the full details, but I do know the guy said he hadn't been drinking. (He was offended they didn't believe him!) They, I suppose, "invited" him to prove this (the replies here indicate they can't force you?) and he did because he hadn't been. I don't know how much resistance he put up to this. Presumably none; he knew it was going to come back clean as he hadn't had a drop all day.

My question comes from the fact that I don't understand the point of them trying to breathalyze him, basically, when he could so easily have said "I came in the door after a crap day, downed four shots of whiskey, and passed out on the sofa." What if he had?

Could they reasonably secure a conviction against someone who had been out of the car for an hour or two and unsupervised in his own home? In the event you had been drink driving, would they be relying on getting you to admit that, or trying to find the friend/publican/whoever had given you the drink previously to give evidence? Assuming you had alcohol in the house, how could they prove you hadn't had any of that instead?

I just found it an interesting situation— and maybe a bit worrying that anyone can report anyone at any time (though without the damage to the wall and car, they mightn't have bothered him at all, maybe) for "drink driving" and get them breathalyzed, even hours after they've no longer been driving.

Is the onus on the civilian or the Guards to prove when the drink was taken, does anyone know?

Little CuChulainn · 11-03-2017 09:02AM

The Gardai have to prove two things. 1 You were driving a vehicle in a public place at a specific date and time. 2 Within three hours of that driving there was alcohol in you system above the legal limit. If an accused person claims they drank after driving then it's up to the defence to prove that they drank alcohol after driving and that drink was what put them over the limit.

A Garda can arrest someone they believe to have been drink driving in the curtilage of a dwelling but not someone in their house.

Johnboy1951 · 11-03-2017 01:25PM

crashed his car into his own front wall.

Is that front wall in a 'public place' ...... just wondering if it is or if it is regarded as private property.
A driver can crash his car all he likes on his own property without being called to account.

My second thought would be what kind of conversation would the gardaí have had with the neighbour before calling on the driver?

Presumably they would have checked the neighbour's vehicle for signs of damage which he apparently reported.

So having found no damage to the neighbour's vehicle what did the gardaí hope to achieve by approaching the driver?

I find the whole incident puzzling, and would suspect the neighbour of making a false report to the gardaí.
What kind of person would not first check if their car was actually damaged before claiming it to be so?

GM228 · 11-03-2017 01:36PM

Little CuChulainn wrote: »

If an accused person claims they drank after driving then it's up to the defence to prove that they drank alcohol after driving and that drink was what put them over the limit.

This isn't entirely correct.

The accused can raise that defence (known as the Hip Flask defence) and produce evidence to that effect, but it is still up to the prosecution to rebut the defence put forward not the accused to prove this defence.

What you describe is the reverse burden of proof (evidential) which can only apply under the common law or as part of statute, the Road Traffic Act 2010 does not provide for an evidential burden of proof on the accused for their defence and I don't believe there is anything under common law either (there certainly wasn't the last time this defence was successfully used in 2012) meaning the burden of proof in relation to any issue always remains with the prosecution.

To demand that the accused prove their defence where no such requirement is required under statute/common law would be considered unconstitutional.

Fred Swanson · 11-03-2017 01:54PM

This post has been deleted.

Little CuChulainn · 11-03-2017 02:17PM

GM228 wrote: »

This isn't entirely correct.

The accused can raise that defence (known as the Hip Flask defence) and produce evidence to that effect, but it is still up to the prosecution to rebut the defence put forward not the accused to prove this defence.

What you describe is the reverse burden of proof (evidential) which can only apply under the common law or as part of statute, the Road Traffic Act 2010 does not provide for an evidential burden of proof on the accused for their defence and I don't believe there is anything under common law either (there certainly wasn't the last time this defence was successfully used in 2012) meaning the burden of proof in relation to any issue always remains with the prosecution.

To demand that the accused prove their defence where no such requirement is required under statute/common law would be considered unconstitutional.

Does Section 18 (2) not do it?

http://www.irishstatutebook.ie/eli/2010/act/25/section/18/enacted/en/html#sec18

GM228 · 11-03-2017 02:27PM

Fred Swanson wrote: »

So if the accused manages to get inside a house he can sit inside for 3 hours and there is nothing that the Gardaí can do?

No because they can't lawfully arrest for drink driving or make a demand for a preliminary breath test in a dwelling.

Fred Swanson wrote: »

Lets say for pig iron sake that the Gardaí get in via an open front door and find the accused twisted and an empty bottle of Jameson's on the table. He says he drank the bottle in the last hour. Where would that leave the Gardaí?

Well they can't arrest him or demand a breath test so not much they can do.

But lets hypothetically say they could arrest/test him:-

They have just potentially provided him with his own defence - that they saw him with the bottle of whiskey in his own home after any potential incident as it creates a reasonable doubt, they can't prove he didn't drink it after the incdent.

GM228 · 11-03-2017 02:51PM

Little CuChulainn wrote: »

Does Section 18 (2) not do it?

http://www.irishstatutebook.ie/eli/2010/act/25/section/18/enacted/en/html#sec18

No, S18 does not shift the evidential burden of proof to the accused, it is more to do with allowing the defence or not in the first place.

In other words if I'm arrested for being say 10 times over the limit and my defence is I had a pint or two afterwards this defence would have to be ignored under S18 (2) as it is obvious 2 pints would not put me that much over the limit. However if I said I drank 2 bottles of whiskey it is possible that that would put me over the limit and the defence evidence should be allowed in which case the prosecution must then rebut my defence.

The only reverse burden of proof under the Act is under S22 for refusing to allow a specimen under S11, 12 or 14, in that case the accused must prove their defence on the balance of probabilities.

Little CuChulainn · 11-03-2017 02:54PM

GM228 wrote: »

No, S18 does not shift the evidential burden of proof to the accused, it is more to do with allowing the defence or not in the first place.

In other words if I'm arrested for being say 10 times over the limit and my defence is I had a pint or two afterwards this defence would have to be ignored under S18 (2) as it is obvious 2 pints would not put me that much over the limit. However if I said I drank 2 bottles of whiskey it is possible that that would put me over the limit and the prosecution must then rebut my defence.

The only reverse burden of proof under the Act is under S22 for refusing to allow a specimen under S11, 12 or 14, in that case the accused must prove their defence on the balance of probabilities.

On that we disagree. My reading is that the court can ignore the defence unless the defence can convince the court that it was the alcohol consumed after the driving which put them over the limit.

GM228 · 11-03-2017 03:01PM

Little CuChulainn wrote: »

On that we disagree. My reading is that the court can ignore the defence unless the defence can convince the court that it was the alcohol consumed after the driving which put them over the limit.

Take Limerick Hurler Mark Foleys case in 2012.

The judge had to allow Mark use the Hip Flask defence because it was possible that one small whiskey after his incident would be enough to push his limit up at the time of testing.

What's more interesting is that the Judge publically stated at the trial that he believed both Mark and his father to be lieing about the defence but he had no choice but to dismiss the case as the state could not rebut the claim or prove that the small whiskey didn't put him over the limit.

Evidential burden of proof can't change to the accused unless statute or common law requires the accused to prove their defence like in S22, there is settled High Court case law on the matter.

Gardai breathalyzer powers when not driving

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