Part 3 of The Road Traffic Act 2016 (which relates to Intoxicated Driving Offences – Driving Under The Influence of Drugs), was effectively brought into operation on the 13th April 2017 by SI.129/2017. It created two new statutory offences of Drug Driving and “in charge” under the influence of drugs by the insertion of Section 4 (1A) and Section 5 (1A) in the old Sections 4 and 5 of the 2010 Act. It does this pursuant to Section 8 of the 2016 Act.
Before examining Part 3 of the 2016 Act it’s important to remember that other parts of that Act materially change the Road Traffic legislation landscape of which we need to be aware. Briefly these include:
• An agreement between this country and The United Kingdom of Great Britain and Northern Ireland on the mutual recognition of driving disqualifications (which commenced on the 1st August 2017) and which is contained in Part 7, Section 40 of the 2016 Act.
• Two further penalty point offences, for using a trailer/semi-trailer with maximum permissible weight exceeding 3,500kg without a licence (2 penalty points on payment of a fixed charge notice and 4 on conviction in a court) and wrongful use of a cycle track (1 penalty point on payment of a fixed charge penalty notice and 3 on conviction), contained in S34 and S35 of the Act.
Section 27 of the Act provides for payment of a fixed charge penalty notice on service of a summons and therefore amends the 2010 Act by substituting a new Section 44 in the 2010 Act. This was brought into force on the 1st June 2017 by SI 242/2017 and refers to the service of a “Section 44 Notice” with the summons to give the Defendant a third option to pay a fixed charge notice, on this occasion by paying an amount 100% greater that the prescribed amount stated in the fixed charge notice and therefore avoiding a court attendance and the increased consequential penalty points. The prescribed Section 44 Notice is contained in SI 300/2017 and came into force on the 11th July 2017.
Section 32 of the 2016 Act amends Section 107 of the 1961 Act obliging cyclists to give his/her name, address, date of birth etc. on demand to a member of the Garda Siochana. Thereforerefore the provisions of Section 107 of the 1961 Act now apply to cyclists. A new Section 108 of the 1961 Act as substituted by Section 80 of the 2010 Act now also applies to cyclists. It likewise gives the Gardai inter alia, the right to take (by reasonable force if necessary) the cycle and retain it until such time as he/she is satisfied as to the identity of the cyclist. This came into force pursuant to SI.129/2017 on the 13th April 2017.
The Dräger DrugTest 5000 is the device chosen by the Medical Bureau of the Road Safety to carry out the new oral fluid preliminary drug test (either at the roadside or in a Garda Station) to test for the presence of certain drugs, including the 5 Specified Drugs (as listed in the Schedule to the 2016 Act) in a driver’s system.
At the Mandatory Intoxicant checkpoint, a Garda can now, not only breathalyse for the presence of alcohol, but also ask a person to provide an oral fluid sample, to test for the presence of drugs, and, may carry out an Impairment Test on the person detained at the checkpoint.
The oral fluid test (Preliminary Drug Test) using the Dräger takes about 1 minute to collect the required amount of oral fluids from the inside of the mouth on a swab which is then placed in a cartridge in the machine which takes about 4/5 minutes to provide the result. The tested person is asked to move a swab attached to a test cassette back and forth between their cheek and gum until an integrated indicator signals the end of the sampling. The tested person then returns the incapsulated cassette to the Garda who slides the cassette into the Dräger giving a display after a few minutes. It can be used at temperatures between 4 and 40 degrees centigrade. It can detect up to 8 substances: cannabis, cocaine, heroin, amphetamines, methamphetamines, benzodiazepines, methadone, ketamine.
In the same way as the preliminary breath test can detect the presence of alcohol in the subject’s breath, but not the level of the alcohol present, the preliminary oral fluid test can detect the presence of the 8 aforementioned drugs in the subject’s saliva (oral fluid) but not the level of the drug/drugs involved. The latter requires a subsequent blood test carried out by a designated Doctor or Nurse in a Garda Station, or in some circumstances, a hospital in the same way as a blood test was carried out to determine the level of alcohol in a person’s blood pre” Evidenzer days” or where an Evidenzer is unavailable.
The 5 drugs listed at Section 8, in the Schedule of the 2016 Act are referred to as “Specified Drugs” and the Schedule also sets out the level above which the concentration of these specified drugs in blood leads to the commission of an offence per say, in the same way that the level of alcohol in blood, urine or breath likewise constitutes an offence, without any further proof of impairment. Unlike varying alcohol levels, there is no sliding scale of penalties and disqualifications for different levels of specified drugs. The offence is committed simply by having a level equal to or above the specific nanograms per unit of blood as set out in the Schedule.
You will notice that in the Schedule of Specified Drugs there are 2 substances referred to as cannabis and 2 substances referred to as cocaine. Different nanogram (ng.) levels per millilitres of blood apply to each of the two cannabis and two cocaine labelled drugs.
Only 1 nanogram per unit of blood is required for Δ9-Tetrahydrocannabinol (cannabis) whereas 5 ng. per ml. of blood is required for 11-nor-9-carboxy- Δ9- Tetrahydrocannabinol. Both are referred to in the Act as cannabis. This is because the former is the principle psychoactive constituent of cannabis (THC), whereas the latter is the main secondary metabolite of THC. A metabolite is a by-product, of the body breaking down or metabolising a drug into a different substance.
Therefore, a larger presence of the metabolite, 5 times the former has been considered necessary for the purposes of impairment under the terms of the Act. Similarly, in relation to cocaine and benzoylecgonine (cocaine) – 10 ng of the former is required but 50ng of the latter is necessary, the latter being a metabolite of cocaine. Heroin is referred to as 6-acetylmorphine which in itself is the specific metabolite of heroin and the presence of which is accepted as definite evidence of heroin use. With heroin, a minimum equal to or greater than 5 ng/ml is required.
Of the other 5 drugs non specified detectable by the Dräger,….. Amphetamines, Methamphetamines, Benzodiazepines, Methadone and Ketamine….. there is no specific reference to them in the 2016 or 2010 Act but the detection of traces of any of them by the Dräger in oral fluids still allows the Garda to arrest the driver or person in charge of an MPV in a public place provided the other proofs of Section 4 (1) or Section 5 (1) of the 2010 Act apply.
In the circumstances of an arrest for the presence of an intoxicant detected by the Dräger (other than the Specified Drugs…Cannabis, Cocaine and Heroin) it would ultimately be necessary for the Garda to prove that the influence of that intoxicant was such as to render the driver (or person in charge) incapable of having proper control of the vehicle. To get a conviction, in those circumstances, the Garda could give evidence as to the finding of the Dräger and blood sample, but also as to his observations of the arrested person. In my view it would be vital for the member to carry out an Impairment Test as provided for under the 2010 Act as amended.
The penalty for Drug Driving is the same as for Drink Driving-a maximum fine of €5000 and up to 6 months imprisonment Summary conviction.
As far as Disqualification periods are concerned, the disqualification periods as provided for under the 2016 Act for the presence of specified drugs (the” new” offences, being above the threshold for cannabis, cocaine and heroin), with no proof of impairment necessary, are a period of not less than 1 year for the first offence and not less than 2 years for the second or subsequent offence.
For pre existing offences of drug driving, while impaired, there is no change to the penalty or disqualification periods, which are a minimum of 4 years for a first offence and 6 years for a second or subsequent offence.
If the oral fluid test for drugs and breath test for alcohol are both negative, but the Garda is still of the opinion that you are impaired due to some other drug/intoxicant that the relevant testing devices do not pick up, after forming the relevant opinions, the driver or person in charge can still be arrested and brought to the Garda station where a blood or urine sample can be taken and sent to the MBRS for analysis. The proofs required here, for a conviction of course come down to whether the presence of the intoxicant renders the driver (or person in charge) incapable of having proper control of the MPV and therefore will to a large extent depend on the Garda’s observations at the scene and/or results of the Impairment Testing (if carried out).
Sections 7 to 19 inclusive and Section 21 of the 2016 Act came into effect pursuant to SI 129/2017 on the 13th April 2017. Section 20 (dealing with the functions of the Medical Bureau also came into effect pursuant to SI 129/2017 but on the earlier date of the 30th March 2017. They have the effect of amending the various Sections of the 2010 Act that we have been used to dealing with in driving offences relating to the use of alcohol, to now include driving offences in relation to the use of both alcohol and drugs, the latter being drugs as Specified under the Act, but also relating to non-Specific Drugs.
Section 7 of the 2016 Act amends Section 3 (1) of the 2010 Act by substituting the definition of “analysis” to include any operation not only used to determine the concentration of alcohol in a specimen of breath/blood or urine but also the concentration of a drug specified in column (2) of the Schedule [this relates to Specified Drugs referred to in Sections 4 (1A) and Section 5 (1A) of the 2010 Act] in a specimen of blood and any operation used in determining the presence (if any) of a drug or drugs in a specimen of drugs or urine.
Section 8 of the 2016 Act amends Section 4 and 5 of the 2010 Act by insertion after Section 4(1) a new Section 4(1A) “subject to subsection (1B), person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his/she body a quantity of a drug specified in column (2) of the Schedule such that, within 3 hours after so driving or attempting to drive the concentration of that drug in his/her blood is equal to or greater than the concentrations specified in column (3) at the same reference number”.
Section 4(1B) this states that Section 4(1A) does not apply to a person in respect of a drug specified in the Schedule where the person is the holder of a medical exemption certificate.
Section 4(1C) provides that a person who signs a medical exemption certificate containing information which he/she knows to be false commits an offence and is liable on summary conviction to a Class C fine.
Section 5 of the 2010 Act is amended by the insertion after Section 5 (1) of Section 5 (1A). This is the equivalent to Section 4 (1A) in relation to a person committing offence being in charge of an MPV in a public place with intend to drive where there is present a quantity of drugs as per 4(1A).
Again, in Section 5(1B) Section 5(1A) does not apply to the holder of a medical exemption certificate signed by a doctor. 8(c) sets out the Schedule of Specified Drugs (for ease of reading see page 610 of Pierse).
Section 9 of the 2016 Act amends Section 7 of the 2010 Act relating to Power of Entry which includes the power to enter without warrant (if needs be, by use of reasonable force) any place (including the curtilage of a dwelling but not the dwelling) where the person is or where the Member with reasonable cause suspects him to be. The amendments include the now entitlement of a Garda to require a person to provide a specimen of oral fluid for the detection of the presence of drugs in the oral fluid or to accompany the member or other member to a place including a vehicle at or in the vicinity of the place concerned to provide a specimen of oral fluid, or, where the member does not have an apparatus with him/her, to require the person to remain at that place in his/her presence or in the presence of another member (for a period that does not exceed 1 hour) until such an apparatus becomes available and then to provide a specimen. This Section also substitutes the previous Section 10 (4) of the 2010 Act in relation to the right of a member of the Gardai on duty at an authorised check point to require a person in charge of a vehicle to provide a specimen of his/her oral fluid using an apparatus for indicating the presence of drugs in oral fluid, in the manner indicated by the member and likewise to accompany him/her or another member to a place including a vehicle at or in the vicinity of the checkpoint and there to provide a specimen or his/her breath or his/her oral fluid.
Section 10 of the 2016 Act amends Section 9 of the 2010 Act by substituting the words “an intoxicant” for “intoxicating liquor” and, requiring a person in charge of MPV in a public place who, in the opinion of the member of the Garda, has consumed an intoxicant or is committing or has committed an offence under the Road Traffic Act 1961 to 2011 or has been involved in a collision or where persons involved in an event in which a death or injury appears to have occurred, to require that person to provide a breath specimen into an apparatus for indicating the presence of alcohol or using an apparatus for indicating the presence of drugs in oral fluid with the like requirements that that person company the Garda to a place including a vehicle to provide such specimens or if the apparatus is not available to remain at that place for a period not exceeding 1 hour until such an apparatus becomes available. It provides for provision for refusals to immediately comply with the requirement.
Section 11 of the 2016 Act amends the 2010 Act by substituting a new Section 10 which provides for mandatory intoxicant testing instead of mandatory alcohol testing at an authorised checkpoint to include an obligation to provide a specimen of his/her breath and/or specimen of his/her oral fluid.
Section 12 of the 2016 Act substitutes a new Section 11 into the 2010 Act. It follows along the lines of the existing Section 10 as to mandatory intoxicant testing. The Road Traffic Act 2010 (Impairment Testing) Regulations 2014 (SI 534/2014) which came into effect on the 26th November 2014 sets out the various tests, enables the Gardai to infer Impairment from the ability of the person to perform the test and sets out a form to be used by the Gardai during the application of the test. This SI was amended by RTA 2010 (Impairment Testing) (Amendment) Regulations 2017 (SI 370/2017) which came into effect on the 13th April 2017, the major amendment being to the Second Schedule by the substitution of a new form of test record. The main tests include pupillary examination, a balance test, walk and turn test, 1 leg stand, finger and nose test. According to reported cases quotes by Pierse (pages 490-494) 1961-2017 Road Traffic Legislation 4th Ed. Bloomsbury… “there is no necessity for a caution before obliging a person to carry out an Impairment Test nor is such a requirement to carry out such a test, without a caution, in breach of the Judges’ Rules”.
Remember the Impairment Test can be carried out where the vehicle is stopped or in the vicinity of the public place concerned prior to arrest or after arrest within a 3-hour period of the driving or attempting to drive or being in charge, and at a Garda Station, if no Impairment Testing is carried out at the side of the road. If no impairment testing is carried out on the arrested person, at the side of the road, and the arrested person is subsequently brought to a Garda Station, and, if this then requires the attendance of a doctor, and again no impairment testing is carried out, it can be put to the prosecuting member that a second opportunity was missed to carry out Impairment Testing, not only by Member in Charge in the Garda Station, but also by an attendant doctor, all of which could be used as confirmation or otherwise for the purposes of assessing whether or not the persons ability to drive is impaired.
Section 11 (5) provides that a person, who with a reasonable excuse, fails to comply with a requirement for Impairment Testing commits an offence and is liable to a summary conviction to a Class A fine (a sum not exceeding €5,000) or an imprisonment for a term not exceeding 6 months or both such a person can be arrested without warrant. Probation of Offenders Act 1907 does not apply.
Interestingly under an article in the Irish Times on the 9th July 2018 David Labanyi states that due to a drafting error in the Act Gardai do not have the power to take a blood or urine sample from a driver or arrested for failing or refusing to take an Impairment Test. A senior Garda apparently told the Irish Times that the suspect could still be arrested for having failed or refused the Impairment Test with consequential severe sanctions “including mandatory disqualification”. I see no reference to a mandatory disqualification for refusing an Impairment Test pursuant to Section 11 (5) of the 2010 Act but I am open to correction on this point (see Section 21 of the 2016 Act which amends Section 26 of the 1961/ Consequential Disqualifications which makes no reference to a breach of Section 11 of the 2010 Act). See likewise extract from Irish Times dated the 10th October 2018 in relation to the “fixing” of this lacuna.
Section 13 of the 2016 Act inserts a new Section 13 into the 2010 Act which provides that where a person is arrested on the various specific sections, ie., Section 4 (8)… Driving Under the Influence of an Intoxicant, Section 5 (10).. In charge of an MPV Under the Influence of an Intoxicant, Section 9(4)… Failure to Provide Preliminary Breath/Oral Fluid Test, Section 10(7)… Refusal to Provide a Mandatory Alcohol/Oral Fluid Test at an Authorised Check Point, or Section 11(5)… Refuse to Provide Impairment Testing or under Section 52 Careless Driving, Section 53 Dangerous Driving, Section 106 Failure of Duties on Occurrence of Accident or Section 112(6).. Unlawful Taking of the Principal (1961) Act, and the Garda is of the opinion that the person at the time of the alleged offence consumed drugs, the member may either at the Garda Station or a hospital requires a person to provide a specimen of oral fluid.
Section 13(B) provides for an obligation of the arrested person to provide a blood specimen either at the Garda Station or a hospital to a designated doctor or a designated nurse where the Garda has carried out a preliminary oral fluid test (roadside) or breath or oral fluid test at authorised check point or Impairment Test under Section 11 or oral fluid Test under Section 13(A) (following arrest), and the Garda is of the opinion that the person has committed an offence under Section 4 (1A) Driving while Under the Influence of an Intoxicant or Section 5 (1A) In Charge while Under the Influence of an Intoxicant or if exceeding alcohol limits, the Guard may, at a Garda Station or a hospital, require the person to permit a designated doctor or designated nurse to take from the person a blood specimen.
Section 14 of the 2016 Act extends the power of the Bureau to analyse:
A The concentration of alcohol in the specimen
B The presence of a drug or drugs in the specimen
C The concentration of drug or drugs in the specimen (new).
Section 15 of the 2016 Act strengthens the prohibition of the “hip flask defence” extending them to (as Pierse refers to it) “the pill/box defence”.
Section 16 of the 2016 Act further extends the admission of written statements by a Garda in respect of compliance with his obligations under Section 12 (Procedures in relation to providing specimens at Garda Stations) providing the statement purports to be signed by the member of the Garda Siochana who made it, contains a declaration to the effect that it’s true to the best of his/her knowledge, information and believe and a copy is served on the Accused personally or by ordinary or registered post at his/her usual or last known residence or place of business.
Section 17 of the 2010 Act extends the presumptions under Section 20 of the 2010 Act in relation to specimens taken by designated doctor or a designated nurse.
Section 18 provides for an amendment to Section 21 (1) of the 2010 Act relating to prosecution costs which provides that unless a court is satisfied that there are special or substantial reasons for not so doing, order a convicted person to pay to the court a contribution towards the costs and expenses incurred by the Bureau in the performance of its functions not exceeding:
(A) In the case of an analysis for the concentration of alcohol €250.
(B) In the case of an analysis for the presence of drugs €350
Section 19 amends Section 22 of the 2010 Act by providing a defence to refusal to permit taking of specimen of blood for the Defendant to satisfy the court that there was a special and substantial reason for his/her refusal of failure. The leading case seems to be DPP – Cagney [2013) 1 IR 493.
Section 20 of the 2016 Act amends Section 26 of the 2010 Act in relation to the functions of the Bureau to provide receipt and analysis or specimens of blood or urine forwarded to it and to determine in respect of such specimens, of –
i. The concentration of alcohol in the blood or urine
ii. The presence of any of a drug or drugs in the blood or urine, and
iii. The concentration of a drug or drugs present in the blood as well as the provision of equipment for taking specimens.
Section 21 of the 2016 Act amends Section 26 of the Principle Act in relation to the provision of consequential disqualification in respect of a conviction under Section 4 (1A) Driving Under the Influence of an Intoxicant or Section 5 (1A) In charge of an MPV Under the Influence of an Intoxicant to
i. Not less than 1 year in the case of a first offence under the Section concerned, and
ii. Not less than 2 years in the case of a second or subsequent offence under the same Section, or
a first offence under that Section where the person has been previously convicted of an offence under the other Section.
Eamonn Fleming Solicitor