A typing error in the legislation on mandatory breath-testing means drivers who refuse to give a breath sample at a checkpoint are unlikely to be successfully prosecuted for drink-driving, The Irish Times has learned.
The Cabinet discussed the issue on Wednesday and it was agreed that Minister for Transport Martin Cullen would rush emergency amending legislation into the Dáil next week to correct the error in the Road Traffic Act 2006. The error means a driver who refuses to give a breath sample at a mandatory checkpoint and from whom a breath, blood or urine sample is later taken at a Garda station, is unlikely to be successfully prosecuted for drink-driving.
Barrister Justin McQuade says this is because in the new legislation "the section that creates the offence has been wrongly inserted, rather than the section that creates the power of arrest. Only drivers arrested under section 4(7) can be required to provide evidential . . . samples. Section 4(6) of the Act does not create an arrest provision. It merely creates the offence of failing to provide a mandatory roadside breath specimen."
This does not prevent gardaí from demanding specimens from those arrested under other road traffic law provisions. It relates only to drivers arrested for failing to give a mandatory breath specimen. A person who refuses to give samples at a checkpoint faces fines of up to €5,000 and/or six months in jail. A driver prosecuted for such an offence is unlikely to face the mandatory two-year driving disqualification. But a judge has the discretion to impose an ancillary disqualification.
The Road Traffic Act (1961) allows gardaí to prosecute motorists for drink-driving and has been strongly contested in the courts leading to many drink-driving prosecutions failing. This led to the introduction of mandatory alcohol testing.
Solicitor Evan O'Dwyer, who specialises in road traffic cases, said: "The [ current] law does not oblige a person arrested for failure to comply with a random breath test to then give a sample . . . later, which would be used in a drink-driving prosecution." The prosecution of drivers who have given roadside breath samples to date and were then arrested, are not affected by the error. A few people are understood to have refused to give samples at a mandatory breath-testing checkpoint.
A department spokeswoman said the amending legislation would be published early next week to amend a "typographical error".
