End to roadside test loophole for driver samples

A legislative error that meant drivers who failed a roadside impairment test could not be required to provide a blood or urine sample is due to be fixed by the end of this month.

Impairment tests were introduced under the Road Traffic Act (2016) which also gave gardaí powers to test motorists for drugs at the roadside from April 2017.

Impairment tests require a driver to carry out a number of co-ordination tasks, including walking in a straight line. Pupil dilation is also checked.

However, a drafting error in the Act means gardaí do not have the power to take a blood or urine sample from a driver arrested for failing or refusing to take an impairment test.

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This is because the powers to do so referred to in the Act are incorrect. The issue was first reported in The Irish Times in July.

In response to a parliamentary question on the matter the Minister for Transport Shane Ross said a number of "cross references" were incorrect and a person arrested for failing or declining to take a roadside impairment test "cannot be required to provide a breath, blood or urine specimen".

Failing to comply

Mr Ross went on to say it was important to note a driver could still be prosecuted for failing to comply with a request to undergo an impairment test. If convicted a driver could face a maximum fine of €5,000 and/or up to six months in prison. This meant no driver would avoid prosecution because of the error.

The Department of Transport said the errors will be corrected by the Road Traffic (Amendment) Act 2018, which will be commenced on October 26th.

The issue emerged while gardaí were being trained on how to carry out roadside drug-driving tests using impairment tests and new handheld drug-driving test kits.

Garda management wrote to the Department of Transport to inform them of the problem.

One senior garda said the while the error meant a sample could not be taken from a driver who failed or refused to take an impairment test, it was having a negligible impact operationally.

“We have multiple testing options at the roadside and multiple arrest options. So we don’t have to use the impairment test.”

Typographical error

He said very few motorists either failed or refused a roadside impairment test and added he was not aware of the issue coming up during a prosecution.

This is not the first time a typographical error has emerged in legislation targeting intoxicated drivers. In 2006, emergency legislation was required to correct an error in the Road Traffic Act 2006.

The error meant a driver who refused to give a breath sample at a mandatory checkpoint and from whom a breath, blood or urine sample was later taken at a Garda station, was unlikely to be successfully prosecuted for drink-driving.