Confusion over the application of new drink-driving law came to light following a Mayo court case. David Labanyireports
The confusion over the retrospective application of longer disqualifications to motorists convicted of drink-driving has its origins from a court case in Co Mayo at the start of April.
In this case 30-year-old Liam Madden from Ballyhaunis, Co Mayo, applied to Claremorris District Court to have his licence restored after six months off the road following a conviction for drink-driving.
However, he was told that under new penalties for drink driving signed into law on March 5th by the Minister for Transport, he was now facing a minimum 12-month period off the road despite the fact that he was convicted before the new penalties came into force.
His defence solicitor Evan O'Dwyer argued in court that the new law was unconstitutional and Judge Geoffrey Browne referred Section 7 of the Road Traffic Act 2006 to the High Court for clarification.
Later that month, in response to a Dáil question from Fine Gael's Olivia Mitchell, the Minister for Transport confirmed the new law was intended to have a retrospective element when he said the new penalties applied to offences "whether before or after the commencement of Section 7 and has a retrospective effect."
According to Mr O'Dwyer this is problematic because "there is nothing in Section 7 of the Road Traffic Act 2006 or Section 29 of the Road Traffic Act 1994 that has the word 'retrospective'. A law can only be retrospective when it is specifically provided for. There has to a commencement date and that date has to be in the primary Act."
To ascertain how prosecuting gardai are handling applications to have licences restored under these new laws nationally Mr O'Dwyer last month wrote to over 40 Garda Superintendents, 39 of whom replied.
Their responses show no clear Garda policy. Four superintendents confirmed they were ignoring the new disqualification periods introduced by the Minister for Transport in March and were allowing drivers to apply to have their licences restored after serving the older, shorter disqualifications.
Three superintendents said they were seeking to enforce the new penalties and a further 22 said they were dealing with applications for the restoration of driving licences on a case-by- case basis.
The remainder said they were referring the query on to Garda Headquarters or the Director of Public Prosecutions, James Hamilton for clarification.
Among the responses are a Cork-based superintendent who states that it is "our view that Section 7 should not apply to disqualification's made prior to the commencement of Section 7."
This opinion is shared by a midlands-based superintendent who states "applications on behalf of persons disqualified from driving prior to the 7th March, 2007, for the restoration of driving licences are being dealt with in the same manner as they were prior to March 2007 . . . in accordance with the repealed Section 29 of the Road Traffic Act."
Yet a superintendent from west Munster has an entirely different interpretation when he says: "The State's position is that the legislation clearly intended to have a retrospective effect under Section 7 of the 2006 Act. The applicant must serve two-thirds of the disqualification period before the court can order the lifting of a disqualification."
The Irish Timesunderstands that the DPP has provided advice on this matter to a number of Garda superintendents after they requested clarification ahead of court cases although it is not clear what the advice is.
Legal experts believe that the State may be inclined to try and let the issue quietly die, as the number of people affected by this is diminishing all the time as banned motorists serve out their disqualifications and have their licence restored.
The other options are to wait for the High Court to clarify the matter which result in more cases being adjourned or to bring forward amending legislation.