The two most common offences prosecuted in the courts in Ireland to do with drink and driving are sections 49 and 50 of the Road Traffic Act, 1961.
Section 49 deals with driving or attempting to drive a vehicle while under the influence of an intoxicant which includes both alcohol and drugs. This is commonly known as “drunken driving”.
(This is part of the road traffic offences section of this site)
It is important to note that the power of arrest in respect of this charge, without warrant, arises under under section 49(8) and provides that the Garda must form an opinion that the driver is committing an offence or about to commit an offence under section 49.
Drunk in charge-Section 50 Road Traffic Act, 1961
Section 50 of the Road Traffic Act, 1961 deals with the offense commonly known as “drunk in charge”. This offence is committed if you are in charge of a vehicle in a public place with intent to drive or attempting to drive.
To be successfully prosecuted for the offence of being “drunk in charge” under Section 50 of the Road Traffic Act, 1961) it is necessary to prove
- The offence occurred in a public place
- That the accused person intended to drive or intended to attempt to drive the car
- That the accused person was in charge of the vehicle.
There is a presumption in law that the accused person intended to drive or intended to attempt to drive the vehicle; it is up to the accused person to prove to the contrary.
Whether the accused person was attempting to drive in the eyes of the law will depend on the facts of each case but there is an important Supreme Court case, DPP v Byrne (2001, unreported) where the accused person was held to be in charge with intent to drive under section 50.
In this case the accused
- Was in the driver’s seat
- Was actually asleep
- Was pulled in to the hard shoulder
- The keys were in the ignition, turned two clicks.
As in the previous offense of “drunken driving” the Garda can only arrest you after he has “formed the opinion” that you are committing or about to commit an offense under section 50. The Garda does not have a general power of arrest.
It is notworthy that to prove a section 50 offence the Garda will not have to prove that you were driving, only that you were in charge of the vehicle.
The concentration of alcohol required to prove this offence is an excess of alcohol in the blood of 80 milligrammes of alcohol to 100 millilitres of blood. There are other tests in relation to testing breath (35 microgrammes of alcohol per 100 millilitres of breath) and urine (107 microgrammes of alcohol per 100 millilitres of breath) .
The sample must be taken within 3 hours of the alleged commission of the offence.
It is important to note that the opinion of the Garda in order to arrest you lawfully must be a reasonable one and must be formed after ascertaining and considering the facts.
For the arrest to be lawful, there are 2 factors required:
1. The driver must be informed why he is being arrested in plain language
2. The driver must be informed that he is no longer at liberty.
Mandatory breath testing
Section 4 of the Road Traffic Act, 2006 provides for mandatory breath testing and covers the situation of the setting up of a check point by the Gardai.
Where a check point is validly set up by the Gardai the Garda does not have to form an opinion beforehand-he is entitled to request a breath test from you by virtue of the setting up of the check point.
If there is no check point set up then the Garda can request a breath specimen from you under section 12 of the Road Traffic Act 1994 if the Garda has formed an opinion that you have consumed intoxicating liquor or have been involved in a collision or have committed or about to commit and offence under the Road Traffic Acts.
Obligation to provide a sample after arrest
Under Section 13 of the Road Traffic Act 1994 a driver can be arrested and brought to the station for driving and being in charge of a vehicle while under the influence of an intoxicant.
Once this happens you are obliged to provide a blood or urine sample to a designated doctor provided by the Gardai.
Under section 14 you can be requested to accompany the Gardai to the station to provide a sample if the Garda is of the opinion that you are under the influence to the extent that you are incapable of having proper control of your vehicle.
If you fail to accompany the Garda you are guilty of an offence and can be arrested without warrant.
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