Drink driving legislation most challenged criminal law

Drink-driving legislation is the most challenged piece of criminal law on our statute books, according to solicitors.

With so much at stake, including driving bans of two or three years, defendants and their solicitors regularly challenge even the most arcane of legal points.

Statistics show they have an impressive success rate: out of 20,000 drink-driving cases before the Irish courts since January 2013, just 6,709 have resulted in convictions.

“It’s like the Grand National,” says Evan O’Dwyer of O’Dwyer Solicitors, who specialises in road traffic law. “There are dozens of hurdles. If the case hits any of them, it can fall.”

The most common grounds for cases being dismissed involve paperwork errors, discrepancies in evidence or procedural points, according to gardaí and solicitors. Other issues, such as the availability of gardaí involved in an arrest or charge, can also have a crucial bearing on a case.

Breathalyser test

There are strict rules governing the use of breathalyser machines, which are operated by gardaí specially trained by the Medical Bureau of Road Safety.

Challenges on the basis of the flawed use of breathalyser equipment is one of the most common grounds of legal challenge, according to solicitors. If the machine is not operated using the correct sequence of steps, the result itself is legally vulnerable.

The mandatory provision of breathalyser results in both English and Irish is just the latest tactic used in challenging cases.

In September, the High Court ruled that Mihai Avadenei (29) should have been provided with test results in both languages, as stipulated in legislation. Many similar cases are being adjourned or struck out on the same grounds, depending on the sitting judge.

Three-hour limit

Section 4 (1) of the Road Traffic Act, 2010 imposes a three-hour limit for the collection of an alcohol sample from a person suspected of drink-driving.

Gardaí and solicitors report unforeseen delays in many cases, such as traffic or gardaí being called to another incident. “It’s often a race against time, especially in accidents,” said one legal source.

In those cases where urine or blood tests are required, there is an even greater chance of delay because a doctor is required to take these samples at the local Garda station.

Involvement of doctors

Doctors are required to take blood or urine specimens in cases where there is no access to a breathalyser, or where a driver cannot given a breath test for medical reasons.

The involvement of a doctor, however, also provides another series of potential legal vulnerabilities, such as incomplete paperwork or flaws in the oral evidence.

Gardaí not present

If a garda involved in the arrest of the defendant is not present in court, the case is typically struck out.

This, according to gardaí and solicitors, is one of the most common reasons for cases failing.

Many gardaí say privately that resources and manpower are issues. Similarly, the relocation or transfer of gardaí can impact on a case, as well as illness or injury.

Three gardaí are involved in drink-driving cases: an arresting garda, the member in charge in the Garda station, and the garda performing the breath test.

Discrepancies in oral evidence

Oral evidence involves telling the story in chronological order. A simple break in the chain of evidence, or a mistake such as getting the day wrong or even the incorrect colour of a car, can be enough to undermine a case.

“If there is an error, there’s a row over how important it is to the case,” said one observer. “There’s a big emphasis placed on oral evidences.”

Infringement of rights

A failure to read a defendant his or her rights or to not provide speedy access to a solicitor or a doctor are areas where cases fall down.

Any omission of any of these stages can be enough for the courts to take a view that a person’s rights have been infringed. The result is often a dismissal, say solicitors.

Licence details

Even where a driver is convicted, there is only a one in five chance they will have their licence number recorded by the court. This may allow a person who has actually been convicted to keep driving without detection. That’s because a person’s licence is suspended by the Road Safety Authority, with information supplied by gardaí or the courts. But if it is missing key licence details, the person may not be easily identifiable.