Driving While Under the Influence of Drugs

 Article by Eamonn Fleming

 The expression “Drunken Driving” is really shorthand for driving while under the influence of an intoxicant.  An intoxicant can include alcohol or drugs.

The offence occurs if the Gardaí can prove, firstly, that a person drove the car, in a public place, secondly, that the person was under the influence of the intoxicant at the time, but more importantly the Gardaí have to prove that the person was under the influence of the intoxicant “to such an extent as to be incapable of having proper control of the vehicle”.

As far as drink driving is concerned this can be fairly well tied down by the taking of blood or urine samples from the driver and if the level of alcohol in the sample is over a certain level then the driver is presumed to be incapable of having proper control of the car.  The introduction of breath tests makes this even simpler in that the breath test can be administered by a Garda either at the roadside or in the Garda Station, whereas in the taking of other samples a doctors needs to be present.

Drugs, including Cannabis, can be detected in urine for up to 28 days. It can therefore be very difficult, purely from a urine test, for the Gardaí to prove that, simply because there is a level of unlawful drugs in the drivers system, that he/she was incapable of having proper control of the car.  If, for example, the driver says that the last time he/she smoked cannabis was 2 weeks ago it would, in my view, without any further proof, be very difficult to prove that this caused him/her to be under the influence of the drug to such an extent as to be incapable of having proper control of the car.

Obviously the Garda can give his/her evidence in relation to how the driver behaved when stopped, ie. his/her eyes were bleary, his/her speech was slurred, he/she was unsteady on their feet, there was a smell off his/her breath, etc but again this is a very subjective level of proof, but often accepted as sufficient  by a Court as sufficient to convict.

As more and more people get charged with driving under the influence of drugs Regulations were enacted and came into force on the 27th of November 2014 known as The Road Traffic Act, 2010 (Impairment Testing) Regulations of 2014.  They can be found in Statutory Instrument SI No. 534/2014 (see link below). They set out a series of tests that a Garda can carry out or ask a driver to perform. This will then allow a member of the Gardaí to infer from watching the person’s ability to perform the impairment test if the person’s ability to drive is impaired or not.  This can include an examination of the person’s eyes, known as a Pupillary examination, a Balance test, known as a Modified Romberg balance test, a walk and run test, a one leg stand test, finger to nose test.  The Regulations then provide for a form to be completed by the Garda to set out the contents of his findings.

Likewise Section 24 of the Road Traffic Act 2010 provides that where a person is arrested or admitted to hospital following an accident a Garda can require that person to undergo a medical examination, to be carried out by a doctor or nurse, for the purpose of getting evidence that the person was at the time of the arrest was under the influence of an intoxicant or not.

It is an offence to refuse to comply with such a request which carries a fine of up to €5,000.00 and/or a prison sentence of not more than 6 months or both.  A person cannot be obliged to undergo the test if the treating doctor thinks the carrying out of such test would be prejudicial to the health of the person.  The Act allows the Gardaí to enter any hospital without a warrant for these purposes.

In charges therefore for drug driving it seems to me that unless the Gardaí carry out an Impairment test that complies with the 2014 Regulations and/or has the driver examined by a doctor, either in the Garda Station or the hospital, the Gardaí may have difficulty proving that the driver was under the influence of an intoxicant to such an extent as to be incapable having proper control of the car at the time.

It can certainly be argued by the Defence Solicitor that the failure of the Gardaí to act as above would allow a Judge to have a reasonable doubt as to whether an offence has been committed or not and in my view be grounds for a dismissal of any such charge.

The last Government proposed to introduce a new Road Traffic Act which would allow the Gardaí to carry out a roadside test for drugs such as cannabis or cocaine by analysing a swab taken from the driver’s mouth.  New testing devices were to be supplied to the Gardaí which would also allow for a test for the presence of alcohol.  The Bill (not yet enacted into law) provided for fines of up to €5,000.00 or a term of imprisonment of up to 6 months or both where traces of cannabis, cocaine or heroin were found in the drivers system.  Provision was also made for persons with high volume of codeine in their system but in this regard an impairment test also needed to be carried out.  The Bill also provided for the recognition of driver disqualifications between Ireland and the UK.  It must be stressed that the Bill has not yet been brought into force.


Road Traffic 2010 (Impairment Testing) Regulations of 2010

Statutory Instrument SI No. 534/2014