Noel Dempsey (Meath West, Fianna Fail)

What Senator Ryan requires is in the legislation. It is difficult is when looking at such legislation to tie all the bits together. The amendment proposes to delete section 2(6) to make it mandatory that a person who, in the opinion of a member of the Garda Síochána, has consumed intoxicating liquor provides a preliminary breath specimen even where such a demand may be prejudicial to the person's health. There is a bigger danger there of a court letting a person off if he or she is able to prove it was prejudicial to his or her health and the garda forced him or her to take a breath test.

It is not true to say there is no alternative to the breathalyser test which the Senator wants to make mandatory in all circumstances even if a person is writhing around on the ground as a result of an epileptic fit, an asthma attack or something else. The garda can arrest the person and bring him or her to the Garda station. When he or she recovers, he or she can be breath tested or a urine sample can be taken. If the person is in obvious distress, the Garda can call an ambulance, bring the person to a hospital and ensure that medical personnel look after him or her and take a blood or urine sample.

The procedure is that a garda forms the opinion that, for medical reasons, a person cannot provide a preliminary breath specimen. I would be happier if that was not in the legislation. I concede that it places an onus on the garda to form an opinion of some kind. He or she will not automatically do that. The person will probably insinuate that he or she is not well or whatever. However, one cannot put a garda in a position where he or she ignores the possibility that a person is genuinely distressed, ill or whatever.

There is a safeguard in this section for the garda and, ultimately, for the State. If a garda disregards a person who is in distress, is ill or whatever or has no discretion in that regard, it would leave the State and the garda open to litigation if anything happened to the person subsequently.

There are also safeguards for the driver. Where a garda forms an opinion that the person is intoxicated, he or she can be arrested and a blood or urine sample can be obtained at the Garda station. It will be a matter for the courts to decide in any subsequent prosecution about non-compliance with the requirement to use the breathalyser. Once it is rebutted, a charge for refusal cannot proceed but the onus is on the driver to prove that.

The taking of a blood sample or the provision of a urine sample by a person at the roadside is not practicable and certainly is not desirable. People know my views on those who drink and drive, but a person's dignity needs to be upheld. It is not desirable to have legislation which requires a person to give a urine sample at the side of the road. The amendment to delete section 3(4) would make it mandatory for a person in hospital to either permit a designated doctor to take a specimen of blood or to provide the doctor with a specimen of his or her urine, irrespective of his or her medical condition and consequential ability to do so. The provisions in sections 2(6) and 3(4) are designed to protect not only the member of the Garda Síochána but also the person on whom the obligations and requirements are being imposed.

I hope I have clarified for the Senators that this is a reasonable and proportionate approach to take to do what we want to do. I commend it to the House.