The legal adviser to the Oireachtas has identified the failure of gardaí to follow proper procedures as the chief reason for drink driving prosecutions being defeated in the courts.
Following a review of challenges to road traffic legislation before the courts over the past two years, parliamentary legal adviser Lia O'Hegarty has told the Oireachtas Transport Committe that greater enforcement of drink driving laws is possible under existing legislation.
Ms O'Hegarty's advice was that gardaí currently have the power to establish checkpoints at any time or any place.
The transport committee is currently examining the Constitutional difficulties identified by Attorney General Rory Brady in introducing random breath testing of motorists. There have been suggestions that it may take a constitutional referendum to introduce such tests.
The National Safety Council has said such tests could save 150 lives every year. It was first promised in 1999.
John Ellis, chairman of the committee, said following Ms O'Hegarty's advice the Garda Commissioner Noel Conroy has been asked to come before the committee next Wednesday to explain "why gardaí want the extra powers and why they are not exercising the law available to them at the minute."
He said: "I think the gardaí have failed on a number of cases on technicalities and they would prefer a carte blanche where they could go and do it [random testing] end of story and reduce the rights of the motorists."
Mr Ellis said: "Random breath testing is actually available to them now, if they form the opinion."
The Garda Commissioner has also been asked to provide details on the number of drink driving cases dismissed, and the reasons for dismissal.
Random breath testing is being sought by the Garda because it is currently illegal for gardaí to randomly stop motorists to perform breath tests.
However, a garda can ask a motorist to take a test once the garda has formed the opinion that the motorist is under the influence of alcohol.
Responding to the claims, a senior garda last night referred to the recent Christmas road safety campaign as an example of why random breath testing was being sought.
"There was a huge number of checkpoints over Christmas and a huge number of vehicles were stopped. But the number of arrests for drink driving were insignificant, less than a handful.
"The problem is that the only time we can form an opinion that a motorist is under the influence is if they are seen driving dangerously.
"So if someone drives up normally to a checkpoint with four or five pints on him, has his insurance and licence and drives off normally, how is the garda to form the opinion?"
Mr Ellis has warned it would take "until at least after the next election" to hold a referendum to resolve the Constitutional issues facing random breath testing.
It has been suggested that the Government could avoid a referendum by putting forward the required legislation after which it is referred for judgment by the President to the Supreme Court.
The Attorney General's view was that it would be reckless for Government to "introduce legislation it knows to be defective with the intention of having the Supreme Court rectify it," Mr Ellis added.
