New penalties for drink driving 'unconstitutional'

A solicitor defending motorists charged with drink driving has questioned the constitutionality of the new penalties that now apply for the offence.

Eugene Carey, a solicitor based in Mallow, Co Cork, said thousands of drivers arrested and charged for drink driving offences over the past two years were probably not aware that they too could face conviction under the new, stricter penalties when their case comes to court.

The new penalties under the 2006 Road Traffic Act were signed into law last month by the Minister for Transport Martin Cullen. As a result, the minimum disqualification for drivers convicted of drink driving has risen from three months to one year.

Drivers disqualified for drink driving can now only apply to the courts to have their licence restored after serving a minimum of a two year disqualification, as opposed to the six month period drivers were required to serve under the old legislation.

Under the Act, the longer disqualification periods and higher fines apply to drivers "convicted" under the new law rather than from when motorists have been "detected". The result of this is that the new penalties may apply retrospectively, he said.

"This is the first time that there has been a retrospective element in road traffic law as far as I am aware. I regard it as punitive and unconstitutional and I believe it will be constitutionally challenged."

Mr Carey also contends that the new disqualification periods may extend to those motorists already off the road following a drink driving conviction before the penalties came into force in March.

"If a driver was convicted and disqualified, after serving six months he was entitled under the old legislation to apply to get his licence back. But there is a problem under Section 7 of the new Act and he may not now get his licence back for over two years.

"There are thousands of people who were disqualified last year who are expecting their licence back this year but who are not going to get their licences back.

"No one condones drink driving. But drink driving unfortunately can cost people their livelihood so drivers are entitled to a fair shake of the whip," he said.

Mr Carey says he has written to Fine Gael Justice spokesman Jim O'Keeffe outlining his concerns with the new law.

Asked if the new penalties were retrospective, a spokeswoman for the Department of Transport said last night that: "The legislation in place at the time the judge is passing sentence applies."

This confusion comes as a letter from a Garda Superintendent in Waterford appears to suggest that some elements of old penalties may still apply when 90 motorists accused of drink driving come before Dungarvan District Court later today.

In a letter to the solicitors representing these defendants, Garda Superintendent Thomas O'Grady of Dungarvan Garda Station wrote that District Court Judge Terrence Finn has "indicated that the new penalties under the 2006 Road Traffic Act are now in force and has indicated that he will deal with pleas under the lower scale of the old Act".

These cases are predominantly made up of drivers detected before the new penalties came into force in March.

When asked about this letter, Superintendent Thomas O'Grady told The Irish Times that the judge was not indicating that he was going to apply the older, shorter disqualification periods and said the judge "may have been referring to fines".

He added that any confusion arising from the letter may have arisen from the language used.

New figures released by the Garda last night show that 441 people were arrested for drink driving over the Easter Bank Holiday weekend, up almost a third on the number of arrests during the same period last year.