Drink Driving Law in Ireland in 2017-the Essentials

mandatory breath testing

The Road Traffic Act, 2010 and Road Traffic (No. 2 ) Act 2011 have brought about a comprehensive consolidation and updating of drink driving law in Ireland. (The Road Traffic Act, 2014 made some further amendments).

From a legal perspective the prosecution of drink driving offences can be quite a technical area, and you are strongly advised to obtain legal advice if you are prosecuted for any drink driving offence.

Let’s take a look at the state of affairs in 2017.

Drunken driving

Section 49 of the Road Traffic Act, 1961 has been replaced by Section 4 of the Road Traffic Act, 2010:

4.— (1) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he or she is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle.
(2) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his or her body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his or her blood will exceed a concentration of—
(a) 50 milligrammes of alcohol per 100 millilitres of blood, or
(b) in case the person is a specified person, 20 milligrammes of alcohol per 100 millilitres of blood.
(3) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his or her body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his or her urine will exceed a concentration of—
(a) 67 milligrammes of alcohol per 100 millilitres of urine, or
(b) in case the person is a specified person, 27 milligrammes of alcohol per 100 millilitres of urine.
(4) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his or her body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his or her breath will exceed a concentration of—
(a) 22 microgrammes of alcohol per 100 millilitres of breath, or
(b) in case the person is a specified person, 9 microgrammes of alcohol per 100 millilitres of breath.
(5) A person who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 6 months or to both.
(6) A person charged with an offence under this section may, in lieu of being found guilty of that offence, be found guilty of an offence under section 5 .
(7) Section 1 (1) of the Probation of Offenders Act 1907 does not apply to an offence under this section.
(8) A member of the Garda Síochána may arrest without warrant a person who in the member’s opinion is committing or has committed an offence under this section.

Drunk in charge

Section 50 of the Road Traffic Act, 1961 has been replaced by section 5 of the Road Traffic Act, 2010:

5.— (1) A person commits an offence if, when in charge of a mechanically propelled vehicle in a public place with intent to drive or attempt to drive the vehicle (but not driving or attempting to drive it), he or she is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle.
(2) A person commits an offence if, when in charge of a mechanically propelled vehicle in a public place with intent to drive or attempt to drive the vehicle (but not driving or attempting to drive it), there is present in his or her body a quantity of alcohol such that, within 3 hours after so being in charge, the concentration of alcohol in his or her blood will exceed a concentration of—
(a) 50 milligrammes of alcohol per 100 millilitres of blood, or
(b) in case the person is a specified person, 20 milligrammes of alcohol per 100 millilitres of blood.
(3) A person commits an offence if, when in charge of a mechanically propelled vehicle in a public place with intent to drive or attempt to drive the vehicle (but not driving or attempting to drive it), there is present in his or her body a quantity of alcohol such that, within 3 hours after so being in charge, the concentration of alcohol in his or her urine will exceed a concentration of—
(a) 67 milligrammes of alcohol per 100 millilitres of urine, or
(b) in case the person is a specified person, 27 milligrammes of alcohol per 100 millilitres of urine.
(4) A person commits an offence if, when in charge of a mechanically propelled vehicle in a public place with intent to drive or attempt to drive the vehicle (but not driving or attempting to drive it), there is present in his or her body a quantity of alcohol such that, within 3 hours after so being in charge, the concentration of alcohol in his or her breath will exceed a concentration of—
(a) 22 microgrammes of alcohol per 100 millilitres of breath, or
(b) in case the person is a specified person, 9 microgrammes of alcohol per 100 millilitres of breath.
(5) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 6 months or to both.
(6) A person charged with an offence under this section may, in lieu of being found guilty of that offence, be found guilty of an offence under section 4 .
(7) Section 1 (1) of the Probation of Offenders Act 1907 does not apply to an offence under this section.
(8) In a prosecution for an offence under this section it shall be presumed that the defendant intended to drive or attempt to drive the vehicle concerned until he or she shows the contrary.
(9) A person liable to be charged with an offence under this section shall not, by reference to the same occurrence, be liable to be charged under section 12 of the Licensing Act 1872 with the offence of being drunk while in charge, on a highway or other public place, of a carriage.
(10) A member of the Garda Síochána may arrest without warrant a person who in the member’s opinion is committing or has committed an offence under this section.

 

A specified person is defined as:Specified Person

“specified person” means a person who at the time of an alleged offence under section 4 or 5 —
(a) is the holder of a learner permit,
(b) holds his or her first driving licence, for a period not exceeding 2 years from its date of issue,
(c) is the holder of a driving licence licensing the holder to drive a vehicle in the category C, C1, D, D1, EB, EC, EC1, ED, ED1 and W while driving, attempting to drive or being in charge of such a vehicle,
(d) is the holder of a licence to drive a small public service vehicle granted under section 34 of the Taxi Regulation Act 2003 or section 82 of the Principal Act or a person purporting to be such a holder while driving, attempting to drive or being in charge of such a vehicle, when the vehicle is being used in the course of business,
(e) does not hold, at the time or, at any time within the period of 5 years prior to the commission, of the alleged offence a driving licence for the time being having effect and licensing the person to drive a vehicle of the category concerned, or
(f) is deemed under section 8 to be a specified person.

Note: the definition of a specified person has been amended by section 9 of the Road Traffic (no. 2) act, 2011.

New Limits for Breath/Urine/Blood

The new limits are set out in section 4 of the Road Traffic Act, 2010:

(a) 50 milligrammes of alcohol per 100 millilitres of blood, or
(b) in case the person is a specified person, 20 milligrammes of alcohol per 100 millilitres of blood.
(a) 67 milligrammes of alcohol per 100 millilitres of urine, or
(b) in case the person is a specified person, 27 milligrammes of alcohol per 100 millilitres of urine.

(a) 22 microgrammes of alcohol per 100 millilitres of breath, or

(b) in case the person is a specified person, 9 microgrammes of alcohol per 100 millilitres of breath.

Fixed Penalty Notices

The Road Traffic Act, 2010 has introduced a fixed penalty notice system for the first time for drink driving offences in section 29.

Driver type Concentration of alcohol Fine Additional penalty
Experienced drivers (a) Not exceeding 80mg of alcohol per 100ml of blood
(b) Not exceeding 107mg of alcohol per 100ml of urine
(c) Not exceeding 35mcg of alcohol per 100ml of breath
€200 3 penalty points
Experienced drivers (a) Exceeding 80mg but not exceeding 100mg of alcohol per 100ml of blood
(b) Exceeding 107mg but not exceeding 135mg of alcohol per 100ml of urine
(c) Exceeding 35mcg but not exceeding 44mcg of alcohol per 100ml of breath
€400 6 months disqualification
Other drivers (a) Not exceeding 80mg of alcohol per 100ml of blood
(b) Not exceeding 107mg of alcohol per 100ml of urine
(c) Not exceeding 35mcg of alcohol per 100ml of breath
€200 3 months disqualification

Source: Citizen’s Information website.

Obligation to provide a preliminary breath specimen

This is set out in section 9 of Road Traffic Act, 2010:

9.— (1) Where a member of the Garda Síochána—
(a) is of opinion that a person in charge of a vehicle in a public place—
(i) has consumed intoxicating liquor, the member shall require, or
(ii) (I) is or has, with the vehicle, been involved in a collision, or
(II) is committing or has committed an offence under the Road Traffic Acts 1961 to 2010,
the member may require,
or
(b) attends at the scene of an event which has occurred in a public place in which injury appears or is claimed to have been caused to a person of such nature as to require medical assistance for the person at the scene of the event or for the person to be brought to a hospital for medical assistance and a vehicle was involved in the event, the member shall, subject to subsection (2), require,
the person in charge of the vehicle—
(i) to provide, by exhaling into an apparatus for indicating the presence of alcohol in the breath, a specimen of his or her breath in the manner indicated by the member,
(ii) to accompany him or her to a place (including a vehicle) near the scene of the collision and there to provide, by exhaling into such an apparatus, a specimen of his or her breath in the manner indicated by the member, or
(iii) where the member does not have such an apparatus with him or her, to remain at that place in his or her presence or in the presence of another member of the Garda Síochána until such an apparatus becomes available to him or her (for a period that does not exceed one hour) and to provide, by exhaling into the apparatus, a specimen of his or her breath in the manner indicated by the member.
(2) A member of the Garda Síochána shall not make a requirement of a person under subsection (1)(b) where, in the opinion of the member or on the advice of a doctor or other medical personnel attending the scene of the event, such requirement would be prejudicial to the health of the person as a consequence of the person’s involvement in the event.
(3) A person who refuses or fails to comply immediately with a requirement under this section commits an offence and is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 6 months or to both.
(4) A member of the Garda Síochána may arrest without warrant a person who in the member’s opinion is committing or has committed an offence under this section.
(5) In a prosecution for an offence under section 4 , 5 or 6 it shall be presumed, until the contrary is shown, that an apparatus provided by a member of the Garda Síochána for the purpose of enabling a person to provide a specimen of breath under this section is an apparatus for indicating the presence of alcohol in the breath.
(6) Section 1 (1) of the Probation of Offenders Act 1907 does not apply to an offence under this section.

Section 9 is amended by Section 7, Road Traffic (No. 2) act, 2011.

Mandatory breath testing

Mandatory breath testing involves the setting up of authorised checkpoints. Once lawfully authorised anyone can be obliged to provide a breath test, and the Garda does not have to form any opinion, unlike in section 9 above where the Garda does have to form an opinion.

The authorisation is a necessary proof in a case which involves section 10 and without an authorisation any arrest is probably unlawful and any evidence gathered inadmissible. The authorisation must specify the public place where the checkpoint will be set up.

Section 10 of Road Traffic Act, 2010 provides for mandatory breath testing:

10.— (1) In this section—
“authorisation” means an authorisation under subsection (2) to establish a checkpoint;
“checkpoint” means a checkpoint established under an authorisation.
(2) A member of the Garda Síochána, not below the rank of inspector, may, for the purposes of section 4 authorise the establishment of a checkpoint or checkpoints in a public place or places at which members of the Garda Síochána may exercise the powers under subsection (4).
(3) An authorisation shall be in writing and shall specify—
(a) the date on which, and the public place in which, the checkpoint is to be established, and
(b) the hours at any time between which it may be operated.
(4) A member of the Garda Síochána, who is on duty at a checkpoint, may stop any vehicle at the checkpoint and, without prejudice to any other powers (including the powers under section 9 ) conferred on him or her by statute or at common law, may require a person in charge of the vehicle—
(a) to—
(i) provide (by exhaling into an apparatus for indicating the presence of alcohol in the breath) a specimen of his or her breath, or
(ii) accompany him or her or another member of the Garda Síochána to a place (including a vehicle) at or in the vicinity of the checkpoint and there to provide, by exhaling into such an apparatus, a specimen of his or her breath,
or
(b) to—
(i) leave the vehicle at the place where it has been stopped, or
(ii) move it to a place in the vicinity of the checkpoint, and
keep or leave it there until the person has complied with a requirement made of him or her under paragraph (a).
(5) A member of the Garda Síochána for the purposes of making a requirement of a person under subsection (4) may indicate the manner in which the person must comply with the requirement.
(6) A person who—
(a) refuses or fails to comply immediately with a requirement under subsection (4)(a) or (b)(i) or such a requirement in a manner indicated by a member of the Garda Síochána under subsection (5), or
(b) without reasonable excuse, refuses or fails to comply immediately with a requirement under subsection (4)(b)(ii) or such a requirement in a manner indicated by a member of the Garda Síochána under subsection (5),
commits an offence and is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 6 months or to both.
(7) A member of the Garda Síochána may arrest without warrant a person who in the member’s opinion is committing or has committed an offence under this section.
(8) In a prosecution for an offence under section 4 it shall be presumed, until the contrary is shown, that an apparatus provided by a member of the Garda Síochána for the purpose of enabling a person to provide a specimen of breath under this section is an apparatus for indicating the presence of alcohol in the breath.
(9) An authorisation or a copy expressing itself to be such authorisation shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Acts 1961 to 2010 of the facts stated in it, without proof of any signature on it or that the signatory was a person entitled under subsection (2) to sign it.

Preliminary impairment testing

Section 11 provides for preliminary impairment testing; this includes testing for drugs.

11.— (1) A member of the Garda Síochána, for the purposes of forming the opinion that a person in charge of a vehicle in a public place is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle, if he or she considers it would assist him or her to form such opinion, may require the person to perform in the presence of the member or another member such impairment tests, in the manner indicated, in accordance with impairment test regulations, by the member or other member in whose presence the test is to be performed.
(2) A member of the Garda Síochána in forming an opinion under subsection (1), where a test under subsection (1) is performed in the presence of another member, may take into account any advice or opinion given to him or her by the other member.
(3) The Minister may prescribe the form of tests, indicating the manner and type of the tests, for the purposes of subsection (1).
(4) A person who, without reasonable excuse, fails to comply with a requirement under subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 6 months or to both.
(5) A member of the Garda Síochána may arrest without warrant a person who in the member’s opinion is committing or has committed an offence under this section.
(6) Section 1 (1) of the Probation of Offenders Act 1907 does not apply to an offence under this section.

Obligation to provide a specimen of breath, blood or urine after arrest

Section 12 of the Road traffic Act, 2010 sets out the provisions to provide a specimen after a person has been arrested. This section provides for a specimen to be provided at a hospital, not just at a Garda station as was the case.

A doctor or nurse can be used to obtain the sample.

It is critically important that the person has been lawfully arrested; otherwise the demand for a specimen is unlawful.

12.— (1) Where a person is arrested under section 4 (8)5 (10)6 (4)9 (4)10 (7) or 11 (5) of this Act or section 52(3), 53(5), 106(3A) or 112(6) of the Principal Act, a member of the Garda Síochána may, at a Garda Síochána station, do either or both of the following—
(a) require the person to provide, by exhaling into an apparatus for determining the concentration of alcohol in the breath, 2 specimens of his or her breath and may indicate the manner in which he or she is to comply with the requirement,
(b) require the person either—
(i) to permit a designated doctor or designated nurse to take from the person a specimen of his or her blood, or
(ii) at the option of the person, to provide for the designated doctor or designated nurse a specimen of his or her urine,
and if the doctor or nurse states in writing—
(I) that he or she is unwilling, on medical grounds, to take from the person or be provided by him or her with the specimen to which the requirement in either of the foregoing subparagraphs related, or
(II) that the person is unable or unlikely within the period of time referred to in section 4 or 5 , as the case may be, to comply with the requirement,
the member may make a requirement of the person under this paragraph in relation to the specimen other than that to which the first requirement related.
(2) Subject to section 22 , a person who refuses or fails to comply immediately with a requirement under subsection (1)(a) commits an offence.
(3) Subject to section 22 , a person who, following a requirement under subsection (1)(b)
(a) refuses or fails to comply with the requirement, or
(b) refuses or fails to comply with a requirement of a designated doctor or designated nurse in relation to the taking under that subsection of a specimen of blood or the provision under that subsection of a specimen of urine,
commits an offence.
(4) A person who commits an offence under this section is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 6 months or to both.
(5) In a prosecution for an offence under this Part it shall be presumed, until the contrary is shown, that an apparatus provided by a member of the Garda Síochána for the purpose of enabling a person to provide 2 specimens of breath under this section is an apparatus for determining the concentration of alcohol in the breath.
(6) Section 1 (1) of the Probation of Offenders Act 1907 does not apply to an offence under this section.

Defence to a refusal to provide a specimen of blood or two specimens of breath

Section 22 of the Road Traffic Act, 2010 provides a defence-a special and substantial reason- for a refusal to provide a specimen in certain circumstances:

22.— (1) In a prosecution of a person for an offence under section 12 for refusing or failing to comply with a requirement to provide 2 specimens of his or her breath, it shall be a defence for the defendant to satisfy the court that there was a special and substantial reason for his or her refusal or failure and that, as soon as practicable after the refusal or failure concerned, he or she complied (or offered, but was not called upon, to comply) with a requirement under the section concerned in relation to the taking of a specimen of blood or the provision of a specimen of urine.
(2) In a prosecution of a person for an offence under section 12 or 14 for refusing or failing to comply with a requirement to permit a designated doctor or designated nurse to take a specimen of blood or for refusing or failing to comply with a requirement of a designated doctor or designated nurse in relation to the taking of a specimen of blood, it shall be a defence for the defendant to satisfy the court that there was a special and substantial reason for his or her refusal or failure and that, as soon as practicable after the refusal or failure concerned, he or she complied (or offered, but was not called upon, to comply) with a requirement under the section concerned in relation to the provision of a specimen of urine.
(3) Notwithstanding subsections (1) and (2), evidence may be given at the hearing of a charge of an offence under section 4 or 5 that the defendant refused or failed to comply with a requirement to provide 2 specimens of his or her breath, or that the defendant refused or failed to comply with a requirement to permit the taking of a specimen of his or her blood or to comply with a requirement of a designated doctor in relation to the taking of a specimen of blood, as the case may be.
(4) In a prosecution for an offence under section 11 (4) for refusing or failing to perform a test, it is a defence for the defendant to satisfy the court that there was a special and substantial reason for his or her refusal or failure and that, as soon as practicable after the refusal or failure concerned, he or she complied (or offered, but was not called upon, to comply) with a requirement under the provision concerned in relation to the performance of a test.
(5) Notwithstanding subsection (4), evidence may be given at the hearing of a charge of an offence under section 4 , 5 or 6 of the Road Traffic Act 2010 that the defendant failed to comply with a requirement to perform a test.

The Supreme Court, in DPP v Maresa Cagney, has held there is an obligation on the Garda to warn the person that if they want to rely on this defence of having a special and substantial reason for failing to provide breath, the person must offer to provide blood or urine.

Sample provision in hospital

Section 14 of the Road Traffic Act, 2010 makes provision for obtaining samples in hospital:

14.— (1) Where, in a public place, an event occurs in relation to a mechanically propelled vehicle in consequence of which a person is injured, or claims or appears to have been injured, and is admitted to, or attends at, a hospital and a member of the Garda Síochána is of opinion that, at the time of the event the person was driving or attempting to drive, or in charge of with intent to drive or attempt to drive (but not driving or attempting to drive), the mechanically propelled vehicle, then such member shall, in the hospital, if such a requirement, having consulted with a doctor treating the person, would not be prejudicial to the health of the person as a consequence of the person’s involvement in the event, require the person either—
(a) to permit a designated doctor or designated nurse to take from the person a specimen of his or her blood, or
(b) at the option of the person, to provide for the designated doctor or designated nurse a specimen of his or her urine,
and if the doctor or nurse states in writing—
(i) that he or she is unwilling, on medical grounds, to take from the person or be provided by him or her with the specimen to which the requirement in either of the foregoing paragraphs related, or
(ii) that the person is unable or unlikely within the period of time referred to in section 4 or 5 , as the case may be, to comply with the requirement,
the member may make a requirement of the person under this subsection in relation to the specimen other than that to which the first requirement related.
(2) Subject to section 22 , a person who, following a requirement under subsection (1)
(a) refuses or fails to comply with the requirement, or
(b) refuses or fails to comply with a requirement of a designated doctor or designated nurse in relation to the taking under that subsection of a specimen of blood or the provision under that subsection of a specimen of urine,
commits an offence and is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 6 months or to both.
(3) Notwithstanding subsection (2), it is not an offence for a person to refuse or fail to comply with a requirement under subsection (1) where, following his or her admission to, or attendance at, a hospital, the person comes under the care of a doctor or nurse and the doctor or nurse refuses, on medical grounds, to permit the taking or provision of the specimen concerned.
(4) A member of the Garda Síochána may, for the purpose of making a requirement of a person under subsection (1), enter without warrant any hospital where the person is or where the member, with reasonable cause, suspects him or her to be.
(5) A designated doctor or designated nurse may, for the purpose of taking from a person a specimen of his or her blood or being provided by a person with a specimen or his or her urine under subsection (1) enter any hospital where the person is or where the doctor or nurse is informed by a member of the Garda Síochána that the person is.
(6) Section 1 (1) of the Probation of Offenders Act 1907 does not apply to an offence under this section.

Fixed penalty notices for drink driving

Section 29 of the Road Traffic Act, 2010 introduces a fixed penalty notice system for drink driving offences.

Specified persons and non-specified persons must be served with a fixed penalty notice, depending on their driving licence status and the concentration of alcohol in his/her body.

29.— (1) Where a person, who is not a specified person, is alleged to have committed an offence under section 4 (2), (3) or (4) or section 5 (2), (3) or (4) and the concentration of alcohol purported to be present in his or her body as stated in accordance with section 13 or certified in accordance with section 17 
(a) did not exceed—
(i) 80 milligrammes of alcohol per 100 millilitres of blood,
(ii) 107 milligrammes of alcohol per 100 millilitres of urine,
(iii) 35 microgrammes of alcohol per 100 millilitres of breath,
or
(b) exceeded—
(i) 80 milligrammes but did not exceed 100 milligrammes of alcohol per 100 millilitres of blood,
(ii) 107 milligrammes but did not exceed 135 milligrammes of alcohol per 100 millilitres of urine, or
(iii) 35 microgrammes but did not exceed 44 microgrammes of alcohol per 100 millilitres of breath,
he or she shall, subject to subsections (4) and (5), be served with a notice (“fixed penalty notice”) in accordance with subsection (10) stating that where the charge specified in subsection (7) (“fixed charge”) is paid in accordance with this section and the penalty points specified in subsection (8)(a)(i) or disqualification specified in subsection (8)(a)(ii) for the person holding a driving licence is in consequence applicable, a prosecution in respect of any such offence shall not be initiated against him or her.
(2) Where a specified person is alleged to have committed an offence under section 4 (2), (3) or (4) or section 5 (2), (3) or (4) and the concentration of alcohol purported to be present in his or her body as stated in accordance with section 13 or certified in accordance with section 17 did not exceed—
(a) 80 milligrammes of alcohol per 100 millilitres of blood,
(b) 107 milligrammes of alcohol per 100 millilitres of urine, or
(c) 35 microgrammes of alcohol per 100 millilitres of breath,
he or she shall, subject to subsections (4) and (5), be served with a notice (“fixed penalty notice”) in accordance with subsection (10) stating that where the charge specified in subsection (7) (“fixed charge”) is paid in accordance with this section and disqualification specified in subsection (8)(b) for the specified person holding a driving licence is in consequence applicable, a prosecution in respect of any such offence shall not be initiated against him or her.
(3) Where a fixed penalty notice is being served on a person under this section it may be served—
(a) in the case of personal service, by—
(i) delivering it to the person, or
(ii) leaving it at the address—
(I) at which the person ordinarily resides,
(II) which, at the time of the alleged offence, the person gave to a member of the Garda Síochána, or
(III) at which the vehicle is registered, where the person is the registered owner of the vehicle at the time of the alleged offence,
or
(b) in the case of postal service, by posting it to the address—
(i) at which the person ordinarily resides,
(ii) which, at the time of the alleged offence, the person gave to a member of the Garda Síochána, or
(iii) at which the vehicle is registered, where the person is the registered owner of the vehicle at the time of the alleged offence.
(4) A person is not eligible to be served with a fixed penalty notice if he or she does not hold a driving licence for the time being in force or is disqualified for holding a driving licence, at the time of the commission of the alleged offence.
(5) A person who has been served with a fixed penalty notice and has paid the fixed charge, is not eligible to be served with another fixed penalty notice within the period of 3 years from the appropriate date relating to the endorsement of penalty points on the entry relating to the person or the date of commencement of the disqualification, whichever is applicable, following payment of the fixed charge in accordance with the notice.
(6) Penalty points so endorsed on the entry relating to a person (who is not a specified person) shall, in accordance with section 4 of the Act of 2002, remain on the entry for a period of 3 years beginning on the appropriate date.
(7) The fixed charge is—
(a) in the case of a concentration of alcohol referred to in subsection (1)(a) or subsection (2) — €200, or
(b) in the case of a concentration of alcohol referred to in subsection (1)(b) — €400,
or such other amount that, for the time being, stands prescribed in lieu of either of those amounts.
(8) Where—
(a) a person, who is eligible under subsection (1) to be served with a fixed penalty notice, pays the fixed charge and payment is made in accordance with this section and the concentration of alcohol purported to be present in his or her body as stated or certified in accordance with Part 2 
(i) did not exceed 80 milligrammes of alcohol per 100 millilitres of blood, 3 penalty points shall be endorsed on the entry relating to the person, or
(ii) did not exceed 100 milligrammes of alcohol per 100 millilitres of blood, the person shall be disqualified for holding a driving licence for a period of 6 months beginning on the date referred to in subsection (14),
or
(b) a specified person, who is eligible under subsection (2) to be served with a fixed penalty notice, pays the fixed charge and payment is made in accordance with this section, he or she shall be disqualified for holding a driving licence for a period of 3 months beginning on the date referred to in subsection (14).
(9) Where a member of the Garda Síochána alleges that a person has committed an offence referred to in subsection (1) or (2) and the person under this section is eligible to be served with a fixed penalty notice, the member shall serve or cause to be served in the manner referred to in section 35 , personally or by post, on that person a fixed penalty notice.
(10) A fixed penalty notice—
(a) shall be in the prescribed form,
(b) shall contain details of the manner of payment of a fixed charge, and
(c) may specify the person to whom and the place where the payment is to be made and whether the payment is to be accompanied by the notice, duly completed.
(11) A fixed penalty notice shall contain a statement to the effect that—
(a) the person on whom it is served is alleged to have committed the offence specified in the notice,
(b) the concentration of alcohol purported to be present in his or her body is as stated or certified in accordance with Chapter 2,
(c) the person is not eligible to pay the fixed charge if he or she is ineligible under this section to be served with a fixed penalty notice,
(d) the person may, if he or she is eligible under this section to be served with a fixed penalty notice, during a period of 28 days beginning on the day stated on the notice, pay to a member of the Garda Síochána at a specified Garda station or another specified place the fixed charge accompanied by the notice, duly completed,
(e) where a payment of the fixed charge is made within the period specified in paragraph (d), the person (not being a specified person) shall, as the case may be, have 3 penalty points endorsed on the entry relating to the person in the circumstances referred to in subsection (8)(a)(i) or be disqualified for holding a driving licence for the appropriate period in the circumstances referred to in subsection (8)(a)(ii) or (8)(b), and
(f) unless the person is not eligible under this section to pay the fixed charge, a prosecution in respect of the alleged offence will not be initiated during the period specified in paragraph (d) or, if payment of the fixed charge accompanied by the notice, duly completed, is made during that period, at all.
(12) A person who is ineligible under subsection (4) or (5) to pay the fixed charge, and who knows or should in the circumstances have reasonably known that he or she is so ineligible, who pays or attempts to pay the charge commits an offence and is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 1 month or to both.
(13) (a) Where the fixed charge is paid in accordance with this section, a receipt for it shall be issued by the Garda Síochána to the person who has paid the charge.
(b) Subject to paragraph (c), the payment of the fixed charge received by the Garda Síochána in accordance with this section shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance directs and shall not be recoverable by the person who made it.
(c) Where a person who is ineligible under subsection (4) or (5) to pay the fixed charge pays the charge, the Garda Síochána may return the payment to the person.
(14) Where a payment is received under subsection (13), the Commissioner shall, as soon as may be after the payment, cause the Minister to be notified of the payment and thereupon the Minister shall cause the number of penalty points or period of the disqualification referred to in subsection (8), as the case may be, to be endorsed on the entry in the licence record relating to the person.
(15) Where an endorsement which is a disqualification is made under subsection (14), the Minister shall cause a notice to be issued to the person concerned informing him or her that the date for the commencement of the period of the disqualification is 14 days after the date of that notice or where penalty points are to be endorsed, that 3 points have been endorsed on the entry relating to the person and will remain, subject to section 3(2) of the Act of 2002, on the entry for a period of 3 years beginning on the appropriate date.
(16) A notice issued under subsection (15) relating to a disqualification shall direct the person concerned to submit the driving licence held by him or her to—
(a) the licensing authority that granted the licence, in the case of an Irish driving licence, or
(b) to such place as specified in the notice, in the case of a foreign driving licence,
within 14 days of the date of the notice.
(17) A person who does not comply with a direction under subsection (16) commits an offence and is liable on summary conviction to a fine not exceeding €2,000.
(18) In a prosecution of an offence referred to in subsection (1) or (2) it shall be presumed until the contrary is shown that—
(a) the relevant fixed penalty notice has been served or caused to be served, and
(b) a payment under the relevant fixed penalty notice, accompanied by the notice, duly completed, has not been made.
(19) (a) The Minister for Justice and Law Reform may by an agreement in writing entered into with any person, upon such terms and conditions as may be specified in the agreement, provide for the performance by that person of any of the functions of a member of the Garda Síochána relating to the issuing of a fixed penalty notice, the receipt of such notice, the acceptance of a payment or the issuing of a receipt for such payment, as are set out in this section or of the function of the Commissioner in respect of the issue of a notice under subsection (9).
(b) An agreement referred to in paragraph (a) may apply to the performance of all or any of the functions to which that paragraph refers in respect of all or selected offences in respect of which this section applies.
(c) Section 14(2), (3) and (4) of the Act of 2002 applies to any agreement entered into by the Minister for Justice and Law Reform under paragraph (a).
(20) In this section, reference to a fixed penalty notice, duly completed, is reference to such a notice on which the number, the date of the grant, and the period of validity, of the driving licence of the person to whom the notice relates, as required in the notice, have been inserted by or on behalf of the person.
(21) In this section “driving licence” includes a learner permit.

Drink Driving Disqualification Periods

Concentration of alcohol First offence (period of disqualification) Second offence (period of disqualification)
(a) Not exceeding 80mg of alcohol per 100ml of blood
(b) Not exceeding 107mg of alcohol per 100ml of urine
(c) Not exceeding 35mcg of alcohol per 100ml of breath
6 months 1 year
(a) Exceeding 80mg but not exceeding 100mg of alcohol per 100ml of blood
(b) Exceeding 107mg but not exceeding 135mg of alcohol per 100ml of urine
(c) Exceeding 35mcg but not exceeding 44mcg of alcohol per 100ml of breath
1 year 2 years
(a) Exceeding 100mg but not exceeding 150mg of alcohol per 100ml of blood
(b) Exceeding 135mg but not exceeding 200mg of alcohol per 100ml of urine
(c) Exceeding 44mcg but not exceeding 66mcg of alcohol per 100ml of breath
2 years 4 years
(a) Exceeding 150mg of alcohol per 100ml of blood
(b) Exceeding 200mg of alcohol per 100ml of urine
(c) Exceeding 66mcg of alcohol per 100ml of breath
3 years 6 years

The periods above are minimum disqualifications; the Court has discretion to impose longer disqualification periods, depending on the circumstances.

Conclusion

The prosecution of drink driving offences can be a technical area, particularly from an evidential perspective.

Being convicted of drink driving will obviously create significant difficulties for you, and may even lead to the loss of employment, not to mention other difficulties in your day to day life.

There is a mandatory disqualification if you are convicted, with the Court having no discretion as to the disqualification.

Therefore, you should almost certainly consider obtaining legal advice to look at your options and the strength of the case against you before deciding to plea guilty or not.

Drink Driving In Ireland-What You Need to Know

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.

mandatory breath testing
A conviction for drink driving can have very serious consequences

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”.

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.

NOTE: The law has been updated and changed significantly since I wrote this article. Please read my updated (in 2017) article about drink driving in Ireland.

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

  1. The offence occurred in a public place
  2. That the accused person intended to drive or intended to attempt to drive the car
  3. 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.

Drink Driving Disqualifications and Penalties

Drink driving convictions result in a mandatory, consequential disqualification from driving.

The Court does not have any discretion into disqualification but may in addition impose a fine and/or imprisonment and a contribution towards the costs of the Bureau which provides analysis of samples and specimens of drivers who have been bagged or otherwise tested.

The length of disqualification will depend on whether it is the driver’s first offence or not and the level of alcohol in the breath, blood or urine sample.

Here are the disqualification periods for the various levels of blood, breath and urine tests of alcohol:

Disqualification periods for drink driving in Ireland

Blood alcohol level

81-100 mg alcohol per 100 ml of blood leads to disqualification period of 1 year for a first offence and 2 years for a second offence.

101-150 mg alcohol per 100 ml of blood leads to disqualification period of 2 years for a first offence and 4 years for a second.

Greater than 150 mg alcohol per 100 ml of blood gives rise to 3 years for a first offence and 6 years for a second.

Breath alcohol level

36-44 mcg of alcohol per 100 ml of breath leads to disqualification of 1 year for a first offence and 2 years for a second;

45-66 mcg of alcohol per 100 ml of breath leads to disqualification of 2 years for a firts offence and 4 years for a second;

Greater than 66 mcg of alcohol per 100 ml of breath leads to disqualification of 3 years for a first time conviction and 6 years for a second

Urine alcohol level

108-135 mcg of alcohol per 100 ml of urine leads to disqualification of 1 year for a first offence and 2 years for a second;

136-200 mcg of alcohol per 100 ml of urine leads to disqualification of 2 years for a 1st offence and 4 years for a second;

Greater than 200 mcg of alcohol per 100 ml of urine leads to disqualification for 3 years and 6 years for second and subsequent convictions.

Any disqualification and penalty comes into effect 14 days from the date of conviction. If you appeal the conviction then it will be adjourned until your appeal is heard and you can continue to drive.

However if you lose your appeal you may receive a tougher sentence.

Breath, Blood and Urine Samples-The Procedures

The procedures adopted after the provision of a breath, blood or urine sample when faced with a prosecution under the Road Traffic Acts is vitally important. A break in the chain of evidence or failure to follow the correct procedure by the Gardai or the Bureau may lead to a collapse in the prosecution case.

Breath samples

The procedure covering breath samples is set out in section 17 of the Road Traffic Act, 1994 (amended by the Road Traffic Act, 2006).

The Gardai must obtain two specimens of your breath, produce two identical statements from the intoxilyser machine and get the accused person to sign both analysis statements. One copy is retained by the Gardai and one is given to the accused person.

Blood and urine samples

Section 18 of the Road Traffic Act, 2004 (as amended by 1(1)(e) of the 2006 Road Traffic and Transport Act, 2006 sets out the procedure for taking urine and blood samples.

A designated doctor or nurse will take a sample of blood or urine, divide it into two parts, put them into 2 containers and seal them. One is sent to the Bureau for analysis and one offered to the accused person who has a choice as to which container he retains.

The sealed container to be sent forward to the Bureau for analysis must be sent as soon as practicable together with the prescribed form completed by the doctor or nurse.

There is a presumption in law that the necessary procedures have been followed by the doctor or nurse unless this presumption can be rebutted by the defence.

Procedure at the bureau

Section 19 of the 1994 Act deals with the procedure at the Bureau when it receives samples taken. The Bureau certifies the accuracy of specimens taken and it must forward to the Gardai “as soon as practicable” a completed certificate in the prescribed form and a copy to the accused person.

Drink Driving Limits in Ireland

The drink driving limits in Ireland are set out below together with the drink driving penalties and disqualifications.

Blood alcohol level limit

The maximum blood alcohol level is 80 milligrams of alcohol per 100 ml of blood.

Breath alcohol limit

The breath alcohol limit is 35 microgrammes of alcohol per 100 ml of breath.

Urine alcohol level limit

The urine alcohol level limit is 107 mg of alcohol per 100 ml of urine.

You can check out the drink driving penalties for drink driving in Ireland by clicking on the link and learn more about drink driving laws and road traffic offences generally on the road traffic offences page.

It is important to keep in mind that in addition to the disqualification periods (which are mandatory, not discretionary) the Court has discretion to impose fines and/or a term of imprisonment on you as well as an award of costs to the Bureau which certifies the accuracy of specimens sent to it by the Gardai.

STOP PRESS: There have been changes made to the drink driving limits in Ireland in October, 2011 and there are new drink driving limits.

The table of disqualification periods will tell you what the period of disqualification will be depending on

1. Whether it is a first offence or not

2. The amount by which you have exceeded the limits for breath, blood or urine with your concentration of alcohol.

New Drink Driving Limits in Ireland

New drink driving limits came into effect in Ireland from the 28th of October, 2011 and are now set out in the Road traffic (No. 2) act, 2011 and the Road Traffic Act, 2010.

(Always consult with a solicitor if you are charged with a drink driving offence)

The main changes are that the 80 mg per 100 ml of blood limit has been reduced to 50 mg and there will be a special lower limit for learner drivers of 20 mg per 100 ml of blood.

This lower limit will also apply to anyone stopped by the Gardai and who does not have their driving licence with them. In addition the lower limit applies to private cars towing a trailer, taxi drivers and tractor drivers.

The Road Traffic (No. 2) act, 2011 also made a significant change in allowing a “second chance” situation to arise. If you are slightly over the 50 mg of alcohol per 100 ml of blood limit the Gardai have the power to impose an on the spot fine of €200 and impose three penalty points.

Prior to this act the driver would always have to be prosecuted in the District Court and face an automatic disqualification of 12 months if convicted.

This second chance/marginal breach of the limit can only be relied upon once in a three year period but a significant change is that you will not have a conviction marked against you at this lower level.

Summary

Experienced Drivers with 20 mg-80 mg will be fined €200 and 3 penalty points.

Drivers with 80 mg to 100 mg of alcohol will be fined €400 and disqualified for 6 months (the previous minimum was 12 months on conviction) and you will have a conviction.

Drivers over 100 mg of alcohol will be brought to Court as per the previous situation with a minimum disqualification of 12 months and fine of up to €5,000.

In addition, specified drivers including learners, taxi drivers and those driving a tractor or pulling a trailer will be subject to the penalties below:

Over 20 mg but less than 80 mg will lead to 3 months disqualification and a €200 fine.

If you find yourself in difficulty in relation to drink driving you would be well advised to obtain a solicitor or professional legal assistance.

Appealing a conviction for drink driving

You may appeal a conviction for drink driving within 14 days of your conviction.

If you do so your conviction will be adjourned until the hearing of your appeal.

However if your appeal at Circuit Court level is unsuccessful then you may receive a harsher sentence.

Update 2017

NOTE: The law has been updated and changed significantly since I wrote this article.

Please read my updated (in 2017) article about drink driving in Ireland.