Drink drivers in collisions to escape forced breath testing

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Drink drivers involved in collisions will escape mandatory breath testing after legal problems were identified in the new legislation, the Irish Independent has learned.

The new law, which obliges gardai to breath test drivers involved in fatal or serious collisions at the scene, was expected to come into effect by the autumn.

However, Attorney General Paul Gallagher has told Transport Minister Noel Dempsey that the new provision should be delayed until the drink-driving limit is lowered in September 2011.

The AG is concerned that the new legislation on testing is vulnerable to legal challenge.

Road traffic legislation is repeatedly tested in the courts, as convictions for drink driving carry an automatic driving ban.

It is understood that Mr Dempsey is furious with the latest setback to road safety legislation and that frantic moves are under way in his department to find a solution.

The move to introduce mandatory breath testing is contained in the Road Traffic Act 2010, which was passed by the Oireachtas with all-party support last month.

It was signed into law by President Mary McAleese last month.

The bill includes a reduction in the drink-driving limit, from 80mg of alcohol per 100ml of blood to 50mg for all drivers and provides for mandatory testing at accident scenes.

Until the new act comes into effect, the law says gardai “may” carry out breath testing at the scene of an accident.

That discretion was removed in the new act, unless medical advice is that the testing cannot be done.

The Public Against Road Carnage (PARC) group last night described the latest setback as “a mess”.

“We believe whoever is advising the minister now could have advised him about the potential for this predicament and averted this mess,” spokeswoman Susan Gray said.

“We do not want this law to be shelved and we do not believe that the minister does either. Test all drivers who are involved in collisions where there is injury or death, let them take test cases.

“PARC doubts if there will be much sympathy for the driver who insists on contesting their blood-alcohol limits on a point of law.”

Mr Dempsey insisted he was not told of any potential problems when the legislation was being drafted.

“It (the problem with introducing mandatory testing) wasn’t something that was raised with me and I’ve raised it with officials,” he said.

“I want to see that section of the act introduced as soon as possible, as immediately as possible.

“From my point of view, the law is there now, commenced or not. I don’t want to wait until September 2011 to have that in,” Mr Dempsey added.

The hold-up in the implementation of the new limits is because machines to measure alcohol in a driver’s breath must be bought and tested before being used.

Government sources said the mandatory testing could be carried out if Garda Commissioner Fachtna Murphy issued a directive to all stations.

“The spirit of the law is wherever there’s an accident where there’s an injury, people involved should be breathalysed,” one source said.

“The existing law states ‘may’, so even if there is a complication legally that the new law all has to come in at the same time, it could be overcome by the gardai by issuing a directive saying legislation says ‘may’, but unless there’s exceptional circumstances ‘do’.”

Source: Irish Independent, 19/08/10
Journalist: Paul Melia