On Monday 21 September 2015 the High Court confirmed the existence of the latest loophole in the prosecution of drink driving cases.
When a motorist is arrested for drunk driving they are taken into the custody of the Gardaí. The Gardaí then have the authority to ask the motorist for a specimen of their blood, urine or breath. Only when this specimen is examined can it be established if the motorist is breaking the law by driving in excess of the legal limit.
The penalties for drink driving are very onerous. At a minimum, you can lose your licence for six months and at the other end of the scale, there is no upper limit. In extreme circumstances, people can also be sent to prison.
There is little sympathy for drink drivers because of the stigma that is attached to the offence due to the harm and carnage it can and does cause. Like every other person accused of a criminal offence, a person accused of drink driving is entitled to a fair hearing and they can raise any defence that may apply. The Road Traffic Acts and Regulations set out the frame work within which the Gardaí must operate when prosecuting drink drivers. Those Acts and Regulations also allow for the use of electronic devices to determine whether or not somebody has excess alcohol in their system.
The Gardaí are relying more and more on the electronic devices to assist them in establishing whether a driver is drunk. The Road Traffic Acts do not allow anybody to challenge the good working order or legitimacy of the machines. The law is also extremely clear in that it acknowledges the dual existence of both the English and Irish languages.
The case on Monday established that when the proof of analysis of the breath sample is provided, it must come in Irish and in English as is stated in the law. This has not happened to date. On Tuesday 22 September 2015, the Minister for Transport introduced new Regulations to close off this loophole.
The question remains then, what about everybody else that is captured by the law and what should they do.
Anyone who is affected by this should consult with their solicitor to get proper legal advice as to what can be done.
People who have been arrested for drunk driving but have not yet come before the Courts may benefit from the loophole that exists. They will need to mind their own proof of analysis carefully. When they are summonsed to appear before the Court, in conjunction with their solicitor, they can raise the issue that has now arisen.
Some people are currently before the Courts having been served with summonses. Those people may also be able to benefit from the problem that has arisen. Ultimately, it is their solicitor who will guide them best on how to take advantage of the situation, if possible.
Finally there are people who have recently been convicted and now find themselves disqualified from driving. Those people may have been convicted wrongly but ultimately the Courts will look at each situation individually.
It is expected that the Courts will not tolerate applications by people who have been convicted in Court over six months ago, that is convictions dating back to early in 2015, but this is untested as of yet.
Anybody who has been convicted and disqualified from driving within the past six months should consult with their solicitor with a view to making an application to having the case brought back before the Courts and reviewed.
It is not entirely clear how this loophole will play out in the Courts for those people that are affected and as it will be addressed on a case by case basis.
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