Legal and garda sources have told Motors a technicality that allows drivers with 12 penalty points to keep driving remains because gardaí stopping a motorist at the roadside still have no way of determining if that motorist is disqualified.
This issue first came to light in February this year when Fine Gael's transport spokeswoman Olivia Mitchell said some motorists with 12 points were continuing to drive due to this legal loophole.
Minister for Transport Martin Cullen said then he had instructed his officials to "copperfasten this grey area", but, according to gardaí and legal sources the anomaly remains.
A spokeswoman for Mr Cullen said every motorist with 12 penalty points was notified to surrender their licence to their local motor tax office within 28 days and a copy of this notice was now sent to the Garda Siochana.
She added that the Road Traffic Act 2002 made it an offence not to surrender your licence and that details of a disqualified driver are entered into Pulse, the Garda computer system.
However, a senior garda said the system fails to catch motorists who do not surrender their licence because there is no penalty attached to the offence of failing to surrender a driving licence.
"It hasn't been sorted out. Nothing has changed since earlier this year. There hasn't been any statutory instrument introduced to sort it out since the loophole was identified earlier this year.
"We have no method; no book, no register for us to record that. Does the sergeant get a notice and pin it up on the notice board? Only court convictions go on Pulse. So if you don't go to court it doesn't show up.
"There is nothing to tell us that a driver has lost their licence, whereas if you are caught for drunk driving it goes on to the computer."
And he disagreed with the assertion by the Department that the Road Traffic Act dealt with the problem. "They are saying that, but it is not being used. That is a fact. There is no physical manifestation of penalty points on a person's licence ever.
"The problem is that penalty points go on your file, not on your licence. This has always been the problem, unless someone is disqualified in the courts. So when we stop a motorist, we ask for his licence, we give him points, we have no idea if he is disqualified.
"All you can do is ask a person to surrender their licence. There is no penalty attached for failing to surrender your licence.
"So some lads who are getting 12 penalty points just keep going."
He added that motorists close to losing their licence could report it stolen, get a duplicate licence and then when they get 12 points surrender the original. "Then they can drive away for six months on the duplicate," he said.
He said this was because the Garda pulse system and the database of penalty points have not been properly linked yet.
SWS Ltd is still processing some penalty point offences weeks after it was told the two systems would be linked and its involvement would come to an end.
SWS inputs penalty point data from the Garda Siochana for the Department of Transport, which then issues the penalty points notice to the driver.
Deputy Michell said she had highlighted the gap in communication between the gardaí and the National Driver File as well as the absence of a procedure to confiscate licences back in February 2006. "There is little point in expending garda resources on detection and even less point in introducing additional offences such as handheld mobile phone use if offenders can get off scot-free."
More than 50 drivers have been disqualified after receiving 12 penalty points to date.
