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Section 49 of the Road Traffic Act, 1961 has been replaced by Section 4 of the Road Traffic Act, 2010: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