Leo Varadkar (Dublin West, Fine Gael)

I will comment on the amendments at this stage. I can address the other issues during my Final Stage contribution. I thank Deputy Dooley for the amendments he has proposed. I understand his concerns but I am satisfied that the provisions in the Bill, as drafted, are sufficiently balanced to ensure gardaí have the requisite powers they need to enforce mandatory testing.

If a garda forms the opinion that, on health grounds, a person cannot provide a preliminary breath test specimen, the main consideration is that the health of the person may not be jeopardised. In circumstances such as acute asthma attacks, cardiac arrest, panic attacks, major haemorrhage, fainting, major facial or head injuries or loss of consciousness, clearly it would not be possible for a person to comply with the breath test requirement. A person may have a head injury and be concussed, may be hyperventilating because of a panic attack or may be exsanguinating due to an injury in his or her leg. Although those conditions might not be life-threatening, it would be "prejudicial to the health of the person" to attempt to require him or her to do a breath test in such circumstances.

The position in this regard has been clarified for me by the Office of the Attorney General, which has advised that in certain circumstances, it is not appropriate for a member of the Garda Síochána to insist on a preliminary breath test, particularly where doing so would pose a risk to the health of the person. The Act must provide for such a safeguard in order to protect the individual and the garda concerned. As section 12 does not envisage a medical practitioner being available at the scene of every accident, or most accidents, the decision must be taken by the garda. The wording "prejudicial to the health" has its ordinary meaning and is to be assessed by the garda having regard to all circumstances presented to him or her.

Where the driver has been injured in the collision and brought to hospital, the mandatory testing provisions in the hospital are provided for in section 14 and are applicable. If a garda forms the opinion that testing would be prejudicial to a person's health, or that the person is shamming or feigning injury, the person can be arrested and a blood sample or urine specimen obtained in a Garda station. Such specimens are obtained by, or in the presence of, a designated doctor who will also be in a position to provide medical care to the person if required. To compel a person to go to a place, as suggested in these amendments, would deprive that person of his or her freedom. Accordingly, he or she would have to be arrested in the first instance. Therefore, the amendments are defective as they would require the arrest of such a person, in effect. As the House will be aware, there are few examples of such a provision. There may be one or two examples. Even in the case of murder, there is no requirement that somebody be arrested.

These amendments use the term "as soon thereafter as may be practicable". I am advised that this term has no real legal meaning. The amendment also requires "the provision of a sample of blood or urine" but it does not specify how and to whom the sample should be given. It also refers to "a place". If the place is somewhere other than a hospital or a Garda station, it must be specified. The amendment also uses the term "where medical care is provided" but does not specify who the person providing the medical care must be. This genuine attempt to close a perceived lacuna would create four further gaps in the legislation. This is often the case with amendments. Road traffic legislation is highly litigious and often challenged in the courts. There is a risk that by trying to close a perceived gap, the Deputy is providing for the possibility of creating four new gaps and causing cases to be struck out of court.

I understand the concern that a small number of unscrupulous gardaí might use this provision to allow people to evade having their breath tested. Unfortunately, I have not found a means of legislating against a garda being unscrupulous or not obeying his duty. I do not believe there is a means of doing so. That applies across the board. It is not possible to legislate against somebody not doing his or her job properly or being unscrupulous. It might be possible to make it an offence for a garda not to do his or her duty. I am prepared to consider that in the context of the second road traffic Bill. It could be difficult.

In my discussions with the Garda, it has been confirmed that a number of options are open to members of the force when a preliminary breath test is not administered at the roadside. For example, the driver may be arrested and the test carried out at a Garda station. When I met an assistant Garda Commissioner, I raised our concerns about this matter and we agreed to monitor the situation regularly.

The timed information issue relates only to court cases and coroner's cases. It is possible in a shorter timeframe to get the time as to whether people are tested or not. If anyone has any evidence that this new legislation is not being enforced and that we do not have genuine mandatory breath testing - it may not be happening due to circumstances in which it would be genuinely "prejudicial to the health" of the person involved - I want to know about it. When this Bill has been enacted, I want to be presented with details of any cases in which it is not being enforced by the Garda. For the reasons I have outlined, I ask Deputy Dooley to withdraw the amendments he has proposed.

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