Some motorists charged with drug-driving may be able to avoid prosecution after the High Court ruled gardaí had no powers to hold drivers by the roadside while their saliva sample was being analysed for drugs.
The court rejected the arguments put forward by the Director of Public Prosecutions (DPP), who claimed gardaí had the power to require a driver to stay up to one hour at a checkpoint, to wait for their test result, under threat of arrest if they tried to leave.
In a High Court ruling delivered on Wednesday, Mr Justice Garrett Simons said the Road Traffic Act 2010 appeared to envisage the results of roadside test for drugs would be instant. The legislation made no reference to what should happen if a test result was not available immediately.
The judge stressed his judgment was only concerned with the taking of a specimen of oral fluid during drug testing, rather than testing breath samples for drink-driving.
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Last December, gardaí introduced a new Securetec Drugwipe device for roadside drug tests. It is similar to an antigen test and can produce a result within two minutes. However, before the introduction of that kit, all roadside drug tests were carried out using a Drager device, with the result taking up to one hour.
The High Court ruling on Wednesday could be used as a legal challenge by any motorist charged with drug-driving before December 1st last, and whose cases were still before the courts. However, the DPP could still appeal the High Court finding, with the judge saying he would hear submissions next Monday.
The High Court judgment arises after a suspected drug-driver contested their case in the District Court, on the grounds gardaí had no power to hold him at the scene of his roadside test for up to an hour. While the suspect’s test result was available after 18 minutes, the garda dealing with him informed him he must remain at the scene for up to an hour or face arrest.
The District Court dealing with that suspect’s prosecution referred the matter to the High Court. The District Court asked the High Court to determine if the Road Traffic Act 2010 provided gardaí with the power to detain a driver at a scene for up to an hour pending the result of their drug test, carried out using the Drager system.
The High Court has ruled the Act gives gardaí no such power and that judgment can be factored into the case — and other similar cases current before the courts. However, the judge imposed a 28-day “stay” or his order “to allow for the contingency of an appeal”.
