Gardaí commonly test drivers for drugs at car crashes without new laws, department says

Gardaí will commonly test drivers for the presence of drugs at the scenes of serious car accidents, the Department of Transport has said, even ahead of plans to make such testing mandatory by law.

Plans to change the law have been viewed as a “natural extension” to those already in place but some concerns exist about linking positive test results to causation.

The Government is to consider introducing legislation which would allow for the same mandatory checks as already exist for alcohol.

A spokesman for the department said while there is no mandatory provision for crash-site drug testing, gardaí can still conduct one if there is a suspicion a driver is under the influence of drugs.

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“The department understands that gardaí will perform such a test at the scene of an accident in nearly all circumstances, as a matter of best practice,” he said.

“The department is examining a legislative amendment to provide for mandatory drug testing in such circumstances.”

Gardaí already have the power under the Road Traffic Act to test for drugs at mandatory intoxication tests. The presence of banned substances above a certain threshold can lead to a one-year disqualification.

Other related laws allow for the prosecution of drivers who are intoxicated to the extent they are incapable of operating a motor vehicle, a provision that allows for a ban of up to four years but which can be more difficult to prove.

The proposals to bring in mandatory drug testing at the scene of serious collisions is seen in the context of increased levels of drug driving and of a recent spike in crash fatalities and serious injury.

Minister of State at the Department of Transport Jack Chambers has asked his officials to examine the necessary legislative changes which will be considered a priority reform.

“Drug driving is as serious an issue as drink driving and the legislation needs to reflect this. Drug drivers must face the full consequences of the law,” he said.

While any intended legislative change would still have to be drafted, Mark O’Sullivan of O’Sullivan Kenny Solicitors, who specialises in road traffic law, said there could be challenges to the law.

“It depends what it is, what the wording is going to say,” he said of potential drafting. “But certainly I’m not sure how they could link if there was a crash or collision, how they could necessarily link that with the mere presence of a drug in the system. Because that many not have been what caused [it].

“Now, if the wording was ‘You were involved in a collision and you had the presence of a drug in your system’, I don’t think that could be successfully challenged.”

Evan O’Dwyer of O’Dwyer Solicitors in Ballyhaunis, Co Mayo, another road traffic specialist, said the proposal was a “natural extension to the law that is there” regarding alcohol testing.

“It does not come as a surprise because of the prevalence of drug driving on the roads right now,” he said.

The issue of appointing blame or responsibility in a crash depends on multiple factors and is assessed by investigating gardaí at the scene. A mandatory drug test, alongside that which already exists for alcohol, would simply be another tool at their disposal.

One legal source said the issue of charging a driver with dangerous driving would depend on the same set of circumstances regardless of drug testing.

In a case where someone had taken cocaine and was hit from behind by another car, the source explained: “You will get tested as you would get tested for alcohol now but that’s not to say that you’re [responsible].

“In that situation you won’t get prosecuted for dangerous driving because you didn’t cause the accident but you will get prosecuted for being in charge of a vehicle while intoxicated.”

Speaking on RTÉ radio on Friday, Royal Irish Automobile Club chief executive Conor Faughnan said a historic absence of drug testing was not a reflection of Government inaction but rather a previous lack of technology.

However, citing analysis published earlier this year by the Health Research Board on coroners’ data, he said while traces of drugs were showing up in road traffic fatalities, their presence did not necessarily prove the driver had been impaired or that drugs had been the cause.