Wednesday, 19 January 2011
Road Traffic Bill 2011: Committee Stage
I move amendment No. 1:
In page 3, line 28, after "paragraph (a)" to insert ", (c)".
The subject matter of the amendments was addressed in the Minister's contribution on Second Stage. On the basis of his comments, I do not propose to pursue the amendments.
I move amendment No. 3:
In page 4, lines 17 and 18, to delete "6 months" and substitute "12 months".
The amendments speak for themselves. The penalty of six months provided for is inadequate. We must send out a message that we are serious about these types of offences. For this reason, where a person refuses to comply in either of the cases outlined, the penalty should be 12 months. These are simple amendments which seek to increase the penalty for such refusal and I ask the Minister of State to accept them.
Previous advice from the Office of the Attorney General advised against introducing such a term of imprisonment in summary trial cases as to do so would run contrary to the overall intention of such trials, would be disproportionate and would have wider implications for other legislation. The only instance in road traffic legislation where a term of imprisonment of 12 months is provided for is in section 112 of the principal Act on the taking of a vehicle without authority. Accordingly, I ask the Senator to withdraw the amendment.
While it is easy to argue that such a term of imprisonment does not apply elsewhere in summary trial cases and would have wider implications, if we are serious about these matters, we must be creative and innovative. If we want to send out a strong message, let us do so.
I move amendment No. 3a:
In page 4, to delete lines 28 to 32.
Before I address the amendments, I seek clarification on amendment No. 5a which I may not move depending on response I receive from the Minister of State. Amendment No. 5a proposes to delete subsection (4). Is the "subsection (1)" referred to in subsection (4) the same subsection as that referred to in subsection (3)?
The proposed amendment to delete subsection (6) of section 2 will make it mandatory that a person who, in the opinion of a member of the Garda Síochána, has consumed intoxicating liquor to provide a preliminary breath specimen, even where such a demand may be prejudicial to the person's health. The amendment also provides that where a doctor or other medical personnel attending the scene of the event where injury is caused advises that such a requirement would be prejudicial to the person's health, a garda may require a medical practitioner to take a sample of blood or require the person to give a sample of urine.
Where a garda forms the opinion that for medical reasons a person cannot provide a preliminary breath specimen, the health of the person in question must not be jeopardised. Examples such as acute asthma attacks, panic attacks or losing consciousness clearly illustrate circumstances where it would not be possible for a person to comply with a breath test.
I refer to the fact that a garda shall not ask the driver who, in the opinion of the garda, is over the limit to give a breath sample if he or she believes it would be dangerous to the driver's health. Why is it necessary to provide for this? The Bill does not state how a driver is to be tested. According to the 2010 Act, a garda shall conduct the test, but now we have a changed situation where the garda shall test, unless it would be prejudicial to the health of the driver. Section 2(6) suggests it is the garda who will forms this opinion without the advice of a doctor. How is a garda suitably qualified to form this opinion without the advice of a doctor? No provision is made for the testing of a driver in a case where the use of a breathalyser would be prejudicial to his or her health. Even if it was based on a doctor's opinion that a person should not be breathalysed, we must come up with a means of testing for the presence of alcohol. Amendment No. 3b would provide a fallback provision where a breath test cannot be undertaken. It would allow for an alternative method of testing for the presence of alcohol.
I support Senator Ryan. I referred to this issue in my contribution on Second Stage. Why does section 2(6) make it clear that the provision to which Senator Ryan refers applies only to a person to whom subsection (1)(a) applies? The next section applies to someone affected by subsection (1)(d). What about a person who commits an offence under section 2(1)(b) or (c)? If the garda suspects a person has committed an offence under section 2(1)(c), does the garda have discretion to decide whether he or she will test the person concerned because it may be prejudicial to his or her health?
I am inclined to support Senator Ryan's amendment. Section 2(7) of the Bill states: "A member of the Garda Síochána shall not make a requirement ... if, in the opinion of the member ... such requirement would be prejudicial to the health of the person". That puts a new obligation on the garda where he or she believes a person he or she stopped has been consuming alcohol. Up until now, a garda has been able to say he or she is obliged to test a person, but now we are giving him or her a new responsibility. The accused person can put pressure on the garda who will be unable to say he or she is obliged to test by law. I understand Senator Ryan's point and wonder is it necessary to do what we are doing.
When a garda forms the opinion that, for medical reasons, a person cannot provide the preliminary breath specimen, the health of the person concerned cannot be jeopardised. I provided the example of an acute asthma attack, a panic attack or where a person loses consciousness. There are circumstances where it is not possible for a person to comply with a requirement to participate in a breath test. The difference between paragraphs (b) and (c) is that it is discretionary, whereas paragraphs (a) and (d) apply to someone who commits an offence such as breaking a traffic light. When a garda forms such an opinion, a person can be arrested and a blood or urine sample can be obtained at the Garda station. It is a matter for the person concerned to satisfy the court in any subsequent prosecution regarding the circumstances surrounding not-compliance with the requirements. Once rebutted, a charge cannot proceed.
The taking of a blood sample from or the provision of a specimen of urine by a person at the roadside is neither practical nor desirable. The proposed amendment to section 3, to delete subsection (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 urine, irrespective of the person's medical condition and consequential ability to do so.
The provisions in sections 2(6) and 3(4) are include to protect the member of the Garda Síochána and the person on whom the requirement is imposed. I, therefore, ask the Senators to withdraw their proposed amendments.
The Minister of State has not dealt with the point raised. She has the response of the Minister for Transport. Is a garda qualified to decide that giving a breath sample would be prejudicial to the health of an individual? Where is the evidence to suggest this is the case? It will be open to a garda to form an opinion based on mood. If he or she considers providing a breath sample would be prejudicial to the health of an individual, can the person concerned be arrested?
If the person concerned has broken traffic lights, the garda might suspect he or she is under the influence of alcohol. This can be contrasted with the discretionary on-the-spot breath test carried out by a member of the Garda Síochána on people randomly selected. If a garda considers a person cannot provide a breath specimen for medical reasons, the person concerned can be arrested and taken to give a blood or urine sample.
If a person has had an asthma attack, it would be prejudicial to his or her health to carry out a breath test. At that point, a garda can take the person concerned to a doctor or hospital to have a sample of blood or urine provided.
I move amendment No. 3b:
In page 4, between lines 38 and 39, to insert the following:
"(8) Where a requirement is not made by virtue of subsection (6) or (7), the member may require a medical practitioner to take a sample of blood from the person or may require the person to give a sample of urine.".
This amendment is related to amendment No. 3a and my view on it is similar in that I will withdraw it on the same basis as I withdrew amendment No. 3a.
I move amendment No. 4:
In page 4, to delete lines 43 to 46 and substitute the following:
"A member of the Garda Síochána shall, upon making a requirement under this section, inform the person of whom the requirement is made, in clear language, that if he or she fails to comply with the requirement he or she shall be guilty of an offence.".".
The Minister made the point in his Second Stage speech that this section was about influencing behaviour and ensuring people know what is expected of them. This is new legislation and the purpose of this amendment is clarify the position. If a collision occurs and a garda issues a direction to the person involved to do something for him or her, does the garda need to make clear that if the person does not obey he or she will be breaking the law and the garda has the ability to sanction the person? If I compare the language in this Bill to the legislation dealing with public order and the regulation of begging that is going through the Dáil, a garda who asks a person to move on must make it clear that if the person does not do so, the person will be breaking the law and liable to sanction. I am not sure in this legislation whether a garda is required to make it clear to a person who has been involved in a collision or an event on the road that if they do not do what is asked of him or her, the person will be breaking the law and, therefore, subject to arrest or sanction by the garda. The objective of this amendment is that a garda would be compelled to tell a person involved in the collision that if he or she does not do what is required of him or her, the person will be breaking the law and therefore subject to sanction under the law.
The Office of the Attorney General included the provision at sections 2(10) and 3(9) specifically to address possible challenges and prosecutions for an offence, for example, under sections 49(1) and 50(1) of the principal Act where the requirement to provide a preliminary breath specimen is not required. Those particular sections provide for the offences of driving or attempting to drive a mechanically propelled vehicle in a public place or being in charge of a mechanically propelled vehicle in a public place with intent to drive or attempt to drive the vehicle while under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle. In such circumstances an intoxicant includes alcohol, drugs and any combination of drugs or of drugs and alcohol.
Subsections (10) and (9) of sections 2 and 3, respectively, clearly provide that in such proceedings it will not be a defence to show that a member of the Garda Síochána did not make a requirement in regard to a preliminary breath specimen. The Minister does not propose to delete the provision.
Furthermore, sections 2(3) and 3(2) provide for the offence of refusal or failure to provide a preliminary breath specimen and where such an offence has taken place, needless to say the person is advised accordingly of having done so by the member.
Deleting the wording suggested by the Senator's amendment would weaken considerably the provisions of the Bill. The substitute wording proposed addresses a different issue, that of the garda informing the person of the offence. To provide in legislation as to how that information is conveyed to the accused not only unnecessary but could also have significant consequences for many other provisions in the Road Traffic Acts. I therefore ask the Senator to withdraw the proposed amendment.
It is the latter part of the Minister of State's response that is of interest to me. I will give an example to illustrate the point I want to make and the Minister of State can help me understand how his would work. When a garda performs an alcohol test on a person involved in a collision or suspected of having consumed intoxicating liquor, will the garda make it clear to the person that if he or she does not perform the test, he or she will be breaking the law?
The section provides for the insertion of a new section 12 in the principal Act and sets out criteria in paragraphs (a) to (d), inclusive, to be met for the Bill to apply to a person. Is a person required to meet all the criteria set out in those paragraphs for the Bill to apply to him or her or can the person be required to meet only one of the criteria? Paragraph (c) states "is or has been, with the vehicle, involved in a collision". That would appear to be quite a generous definition that would allow a garda to ensure almost anyone who has been involved in a collision would be subject to the powers of this Bill. Is a person required to meet all criteria in paragraphs (a) to (d), inclusive, to be subject to the powers of this Bill or is he or she required to meet only one of criteria?
Any one of the four. Is the Minister of State satisfied that the wording of the Bill makes it clear that a person is required to meet only one of those four criteria? That is a question for her to consider before the Bill moves forward. I have seen it laid out in other legislation that a person is required to meet only one of the criteria set out. If the Government is satisfied with the wording as set out that the section is not open to challenge, that is fine, but I thought this was a question worth raising.
I understand Senator Donohoe's point. He asks if a person must meet all four criteria. The word "or" occurs after paragraph (c) but does not occur after paragraphs (a) and (b). Section 2 refers to a person in charge of a mechanically propelled vehicle in a public place and who in the opinion of the member of the Garda Síochána "(a) has consumed intoxicating liquor, (b) is committing or has committed an offence under the Road Traffic Acts 1961 to 2011, (c) is or has been, with the vehicle, involved in a collision, or". It seems to me that it would solve the problem if "or" was inserted after paragraphs (a) and (b). It may not be needed but it would address Senator Donohoe's concerns.
When we did the original Bill, we were told that every section would be challenged in the future because of the regularity of challenges to such legislation in the courts. These are not just points of grammar. We want to ensure the Bill is as robust as possible. Senator Quinn has picked up on an important point, namely, the presence of the word "or" in paragraph (c). If "or" is required in paragraph (c), why is it not required in paragraphs (a) and (b)? It would give the Bill full applicability to anyone who might be involved in a collision.
With respect, there is a difference between going into a restaurant and ordering a cup of tea and putting together legislation that will be challenged. This is an eminently fair point and the Minister of State's response that she is satisfied is not good enough. The question still stands. If "or" is present in paragraph (c), why is it not present in paragraphs (a) or (b)?
This will be challenged and if we want robust legislation that is successful, we must ensure it will stand up. It will not be challenged on that basis if we insert "or" after paragraphs (a) and (b). I urge the Minister of State to consider this. We will table an amendment on Report Stage to insert "or" after paragraphs (a) and (b) and then I will be satisfied that no one will challenge the legislation on that basis.
The Attorney General would of course be satisfied with any legislation that comes into the House but that does not mean he is right. It is incumbent on us that if we feel the legislation can be improved, we will try to do it. I join Senator Quinn in tabling an amendment on Report Stage.