Jack Chambers (Dublin West, Fianna Fail) | Oireachtas source

I move amendment No. 1:

In page 9, between lines 29 and 30, to insert the following: “(b) by the insertion of the following subsection after subsection (2B):

“(2C) Where a member of the Garda Síochána, under subsection (2A), requires a person to provide a specimen of oral fluid from his or her mouth, the member shall require the person to remain at a place (including a vehicle) at or in the vicinity of the public place concerned (for a period that does not exceed 30 minutes after the provision of the specimen) until the apparatus referred to in subsection (2A) indicates the presence or absence of drugs in the specimen.”,”.

These amendments are being taken together. As a group, they are in response to a recent court case that made findings of concern with regard to intoxicant testing at the roadside. Gardaí have the power to conduct two kinds of tests for intoxicants at the roadside. These are breath tests for alcohol and oral fluid tests for drugs. The powers to conduct these tests are set out in sections 9 and 10 of the Road Traffic Act 2010. Section 10 deals specifically with roadside checkpoints, that is, pre-planned checkpoints where gardaí can stop and check any motorists passing through. Section 9 deals with all other circumstances where gardai may conduct these tests.

Where a garda makes a requirement under section 9 or 10 for a person to supply a specimen for testing, it is an offence for a person to refuse or fail to provide the specimen. Amendments to section 22 of the 2010 Act made in 2023 allow a person to offer a defence of a special and substantial reason for refusal or failure to comply with such requirements under sections 9 and 10.

Last November, in a court case known as DPP v. O’Flaherty, the High Court ruled that there was no implicit Garda power to hold someone at the scene of a roadside test once he or she had provided a specimen. The effect of the court ruling is that a person can leave the scene of the test before the gardaí have a test result. Deputies will know that a roadside breath test gives a more or less instant result. On the other hand, the test devices in use today are like tests we all got used to during the Covid-19 pandemic. The specimen is put in the device, a control bar appears to show there is a valid or adequate specimen and then lines will develop if there are drugs present. With the kits currently in use, it takes approximately two minutes for the control line to appear and a total of eight minutes for the full test to be completed. Therefore, we face a situation where a person could leave the scene and be some distance away before gardaí have a test result that could be positive for drugs. I think we would all accept that is not an acceptable legal position. When we think of the issues related to testing, we also have to bear in mind operational issues. Whether at a checkpoint or at the scene of a collision, a garda may have to attend to other things before he or she can deal with the person from whom they want to take a specimen. There may be issues with the device or difficulties getting a specimen. For example, it may not be easy to get a specific specimen from a person, and, in the case of a drug testing device, it may emerge after two minutes that there is no control bar and so a valid specimen has not yet been provided.

For these various reasons, we have decided to amend the legislation to provide an explicit power for the gardaí to require a person who is the subject of a roadside drug test to remain at the scene until a test result is achieved. We are not doing the same for the breath test given the near instant result in that case. We have set a maximum amount of time for holding a person at the scene. After consultation with the Garda about possible operational issues at the scene of a test and the possibility to conduct further tests if the original attempt to collect a specimen was not successful, we have determined that the maximum amount of time we should allow for holding a person at the scene for testing purposes is 30 minutes. This does not, of course, mean that gardaí could simply decide to hold a person for 30 minutes. Once they have got the test result, the gardaí will no longer be able to detain the person under these provisions. Of course, they might then arrest the person on intoxicated driving charges if a positive test result is returned. That is different matter, however. I should add that the Director of Public Prosecutions is appealing against the High Court's decision in the O'Flaherty case. We could wait for the appeal before acting, but on taking legal advice, I am satisfied that we should act now, without prejudice to the appeal, to put in explicit at powers for the Garda to hold someone until a test result is achieved.

I believe we can all agree it would be absurd to have a situation where a person driving on drugs could give a specimen to a garda and then drive away while the garda waited for the test result to develop. In order to address this issue, we are proposing amendments to both sections 9 and 10 of the Act to give the Garda the necessary power to require people to remain at the scene while gardaí conduct oral fluid test for drugs under those sections.

As I said, the maximum time for holding anyone will be 30 minutes. If the tests are concluded within that time, however, people cannot then be held further unless, of course, they are arrested then for intoxicated driving. As a consequence of introducing this new requirement to remain at the scene while a test is completed, we are also proposing to amend section 22 of the 2010 Act. This will allow for a defence of a special and substantial reason for refusing or failing to comply with the new requirement to remain at the scene. There could obviously be justifiable reasons, such as medical, for example, where it might not be possible for a person remain at the scene. This group of amendments includes a number of consequential amendments to update cross-references in the legislative text.

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