Thursday, 29 September 2011
Road Traffic (No. 2) Bill 2011: Committee and Remaining Stages
I move amendment No. 1:
In page 3, line 26, to delete "10" and substitute "2".
I welcome the Minister back to the House. The amendment refers to the interval within which one has to present one's driving licence to the Garda. We discussed the issue briefly on Tuesday with the Minister and he was interested in the proposition. I asked some senior counsel about it and they told me it was custom and practice dating to a time when there were hardly any cars on the road and if somebody crashed in west Cork he or she would have had to make his or her way back via four or five railway companies to Carndonagh, therefore he or she needed time to present a driving licence. I wondered if there was a human rights aspect to the rule and was not able to detect that. The Minister has assistants.
Does the system work? Under the previous system one went to the Garda station of one's choice and I recall the information being written in a large ledger. Does it relate to the original station? The system does not seem to be connected and is certainly not high tech. There should be some way of linking the information to the Garda station conducting the inquiry. One would wonder if such a system obstructs or delays modern policing. Does the delay relate to an era when technology was far less equipped to deal with these matters than it is now?
When plastic driving licences are introduced in a few years' time the logical thing would be for a person to have it with him or her. A vehicle is worth €10,000 or €15,000 and it is not a major requirement that one has one's driving licence with one in order that an investigation can start immediately. My amendment is a proposal for the Minister to consider. My proposed period may be too long. I am open to what the Minister's research has found in the intervening two days. The system dates back to the early days of the State and nobody knows why there was such a large allocation of time. It is not conducive to modern, speedy policing. I await the Minister's answer with interest.
I ask the Minister to clarify a matter. I was under the assumption that if one was stopped by a garda who asked one to produce one's driving licence, but one did not have it with one as sometimes happens, one could be charged with an offence. Section 2 suggests there is no flexibility.
If one fails to produce one's driving licence one has ten days to produce it. I understood that was the custom and practice. Is it technically an offence to fail to produce a driving licence when a garda stops one and demands to see it for which one could be charged and prosecuted? What is the current position?
I can confirm that it is an offence not to produce a driving licence. It is the law and practice to allow people time to produce a licence for the reasons suggested by Senator Barrett. People might not be carrying a driving licence. We do not know where the ten-day rule comes from but it has been in place for quite some time. I am open to the idea of having a shorter period but the period proposed in the amendment of two days is too short. A person may have to travel on business the next day and cannot get out of it or may have to go on holidays or to a funeral.
A shorter period than ten days is reasonable but two days is too short and on that basis I am not prepared to accept the amendment. We are developing a plastic driving licence. Production will start next year and we hope to have it in place by 2013. At that point I propose to impose penalty points and on-the-spot fines for people who do not have a new licence with them or in their car.
The problem with a two-day rule is that if the Garda went to the trouble of using the courts and prosecuting someone for not producing his or her license within two days and then he or she turns up in court with the licence or he or she can prove that he or she went to a Garda station on day three, it would be an unnecessary use of court and Garda time.
Can I assume that when this section is enacted it will prevent a garda from prosecuting a driver who fails to produce his or her driving licence on demand? The Minister has established that it is already an offence. I do not wish to cast any reflections whatsoever on the fine body of people in the Garda Síochána but there could be occasions where a garda might decide to use the full rigours of the law on a particular individual and he or she would be well within his or her legal rights to do so. Will the enactment of this section prevent such a scenario from occurring? Will a driver have the right to say to a garda that he or she has ten days to produce a licence and a legitimate reason for not having it? Such a system would prevent a prosecution from being pursued.
That is a fair point. The current situation will remain. A garda will have discretion and could initiate a prosecution, but would have discretion to allow a person to produce a driving licence within ten days.
I ask the Minister to reflect on the proposal in the context of ongoing legislation. He might re-examine the issue in light of this enlightened Bill. I am not suggesting the scenario I have outlined could happen but it leaves the issue open.
On the amendment, which proposes to change the time from ten days to two, I understand from where the Minister is coming. A few weeks ago I travelled back to my constituency from work. The new roads caused me to put my foot down a little too much. A garda stopped me and questioned why I was going so fast. He commented that my Toyota Corolla was not built for that type of speed and I had to agree with him. I learned my lesson and took my chastisement. I did not have my driver's licence with me.
One practical reason people do not carry their driver's licence with them is its size. It does not fit neatly into a pocket or a wallet. I drove my wife's car and kept my driver's licence in the sun visor but forgot to transfer it to my car. I am from a rural constituency and it is difficult to find a local garda at a Garda station because they are only on duty during particular times and days.
It was almost impossible for me to get there to meet the garda within two days, owing to travel commitments. The ten-day rule was quite appropriate to me and if it did not exist, I might have received a few more penalty points. For those practical reasons I cannot support the amendment although I appreciate the spirit in which it was proposed.
Senator Heffernan has outlined everything I wished to say on the amendment. I understand the spirit of Senator Barrett's amendment. A two-day rule would be impractical because as the Minister has pointed out, somebody could be going away for a weekend, have a work commitment or be attending a funeral. Someone without his or her licence could be stopped on the way to the airport and staying away for a week. I know some people might need to bring a licence when travelling with Ryanair. I know the Minister has suggested that ten days is too long, but two days is too short.
I also cannot support the amendment because there is a need for some flexibility. I was once stopped by a garda on my way out of the country. In such circumstances it is not possible to be back within two days. I am somewhat concerned over the Minister saying that when the plastic cards are introduced, a driver failing to produce a licence there and then will automatically be prosecuted, fined and get penalty points. With the best will in the world, a driver might mislay the licence, leave the wallet behind or whatever. As the records will be computerised I presume the Garda authorities would have access to the national database and be able to check if a garda was concerned a person might not be entitled to be driving a vehicle. I would be concerned if it was too tight and there was no flexibility where genuine mistakes in mislaying a licence might occur. The prospect of incurring penalty points and a monetary fine is very serious. The impact on getting insurance is the real concern for many people. While we want to ensure that everybody is within the law we need some flexibility when genuine situations arise.
I believe the solution is to withdraw the amendment and substitute "N", with N being a number greater than two or less than ten. I am sure the Minister will find the correct number that satisfies us. One of the functions of this House is to establish the rationale behind the ten-day rule in the first place, which has been useful. The case for two days would be that Senator Heffernan travels around so quickly, he would easily get to a Garda station within my low limit of two days.
On Second Stage yesterday in response to questions from Senator O'Sullivan and others, I understand the Minister referred to the introduction of the plastic driver's licence which he also subsequently mentioned. He hoped that this would be used as a means of identification, which seems perfectly sensible. However, as he will be more aware than most, there is one organisation that insists on introducing its own laws regarding providing identification, particularly for those travelling outside the country. It insists that it must be a passport. I understand that other airlines and businesses may accept a driver's licence. I have no doubt that once the Minister introduces the plastic card licence containing a photograph, it will be used more frequently. Would the Minister consider going further? Is it possible for him to make it a requirement or is it a matter for individual businesses to decide within their constitutional right as to how they should operate their business. I do not want to complicate the matter but if the Minister is going to the trouble of introducing a plastic driving licence, which is a welcome innovation, one would hope it would be used on practically all occasions as valid identification, including by Departments which up to now have not accepted driving licences, which may be within his purview.
As this is my only opportunity to ask about driving licences in this debate, has the Minister also considered anti-fraud measures that might be built into it? As he knows, credit cards are regularly skimmed and reproduced. If it is going to be used increasingly as an identification method, has he considered anti-fraud elements? Will it contain a chip or will there be other ways of identifying it? I do not want him to waste the time of the House in expanding on it, but I am curious as to whether the matter has been discussed in the Department?
I thank Senator Barrett for withdrawing his amendment. I will give consideration to what Senator Mullins said when we introduce the penalty points and fixed fine. Everyone forgets his or her wallet at some time and it is not the objective of the Government to impose penalty points and fines on people who forget their wallet. Perhaps it could be penalty points and a fine if a driver does not produce it on the spot or within a period of time. We will think about that when we come to it.
I have had some discussions with the CEO of the company to which Senator Mooney referred. He has agreed verbally that the licence will be accepted for flights-----
It is not envisaged that the new plastic driving licence will be a national identity card. I do not have a problem with a national identity card, but there are no plans to introduce one. At the same time we will introduce a new social welfare card. It will be very important in cracking down on social welfare fraud to have a photograph-based social welfare and public services card. It will replace the existing PPS card. That will be the more valid identification than the plastic driving licence. Ideally they would all be contained in one, but we are not there yet and European directives do not allow us to do that.
This is a model of the new driver's licence and it has a chip on the back, unlike the UK one. It is the most modern plastic licence and that is the best anti-fraud measure possible. Of course people can still replicate them, but it would be better than the current system.
"(1) Where a member of the Garda Síochána alleges to a person using a mechanically propelled vehicle that the member suspects that such person has committed a specified offence under this Act, the member may demand of such person his or her name and address and date of birth and may, if such person refuses or fails to give his or her name and address and date of birth or gives a name or address or date of birth which the member has reasonable grounds for believing to be false or misleading, arrest such person without warrant.",
This is a technical amendment. At the moment it states: "if such person refuses or fails to give his or her name and address or date of birth". We want to change it to "and", lest there be confusion that a person only needs to produce one of those pieces of information rather than all of them.
I move amendment No. 3:
In page 6, line 14, after "unauthorised" to insert "and reported to An Garda Síochána".
This amendment deals with the defence that a person's car was stolen at the time or taken without permission. I am trying to give protection to the Minister and society at large that if a person wanted to use that defence it would help if he or she informed the Garda rather than simply claiming that it must have been stolen at the time. I am trying to put an onus on the person who uses that defence to report it so that it is not an after-the-event excuse.
I realise there would be difficulties. A person could say he or she was watching television on the night in question and did not know. There must be a time limit issue. If the complaint is that a person's car was stolen and used by somebody to commit crimes, I am trying to make it incumbent on the person who seeks to use this defence to inform the Garda. That is the way it is phrased in the Bill and I am trying to include a protection for it. However, my senior counsel friend said this would be difficult to do. I think it is desirable, but I will leave it to the Minister and his advisers to decide whether it is a constraint we would wish to place on the use of the defence, "I was not driving the car at the time," to which we should be able to say, "You should have told us."
This amendment is to section 3 which states, "Where a person is charged with an offence under subsection (2), it is a defence to the charge for him or her to show that the vehicle was being driven on the occasion in question by another person and that such driving was unauthorised." It is essentially to allow somebody to offer the defence that his or her car had been stolen by somebody else. My understanding is that what Senator wants to do is to avoid people using this as an excuse by requiring them to report to the Garda that their car has been stolen. I would like to accept the amendment, but I cannot because it would create another loophole. If somebody's car was stolen while he or she was away or at work, or even from the garage and the person did not know, he or she would obviously not be able to inform the Garda and even if it was stolen, he or she would have no defence.
I support the Minister who has outlined in a reasonable way why the amendment cannot be inserted in the Bill. If a person was away for the weekend and had come home to find that his or her car had been stolen and that it had later been involved in an accident, he or she would not have reported this fact to the Garda. It is impractical and would create another loophole. Therefore, we will be opposing the amendment.
I thank the Minister and Members on the other side of the House for their consideration of my amendment. Reasonableness applies and Senators have pointed to the circumstances that would apply. My fear is that this provision will be used as an excuse, but I can see how difficult it is to nail down those whom we want to nail down.
There are references in section 3 to driving dangerously defective vehicles and parking vehicles in dangerous positions. All of us welcome the Bill because if we look around the country during the recession, there is an increasing number of cars with registration plates stretching far back in time. There was a time between 2000 and 2009 when garages found it difficult to shift cars that were more than two years old. Everybody wanted to have a new car. Most of the cars now on the road date back to 2006, 2007, 2008 and 2009 and the car industry is going through a difficult time. The Government scrappage scheme gave it a short new burst of life, but it is very flat again and I hope it can recover.
As it is becoming increasingly difficult for people to find the finance, there is a real concern that people may put off having their cars repaired. For example, there is a noticeable increase in the number of cars with defective lights. While driving at night, I have seen cars with headlights not correctly aligned, or with only one headlight, and being driven with the lights dimmed. This seems to suggest that because of financial constraints people are not paying as much attention to improving their cars as they would have done heretofore. That presents a problem, to which I would love to be able to offer a solution. The Bill will obviously be rigorously enforced, which I welcome, because no one should drive a defective vehicle that poses a danger to others. However, is there any thinking in the Government that might provide an incentive? I know everybody is asking the Minister for an incentive for one thing or another, yet there is no money available. Perhaps he might reflect on the consequences of the legislation and introduce some incentive to encourage people into garages to have their cars fixed. I know the NCT obliges them to do so, but that is only after a period of three years and I am not so sure that will address the problem to which I refer. The incentive I would like to see introduced might also help to create jobs in the motor industry. I am not sure exactly what incentive the Minister could introduce, but obviously it would have to have a financial base. Perhaps the greater minds in his Department who will be drawing up budgets line by line to be presented to the Minister for Finance might look at this issue to see if some incentive could be given to help the motor industry, and by extension, reduce the amount of defective vehicles on the road.
I support strongly much of what Senator Mooney said. We have all noticed the poor lights on many vehicles on the road. As public representatives, it is incumbent on us to highlight the need for people to examine the tyres and lights on their cars, especially as we approach winter. People tend to cut corners in difficult economic circumstances and this contributes to road traffic accidents. With all the new technology in motor vehicles, I often wonder why there is nothing to indicate a headlight or a break light is not working. If the oil level is low, this is indicated, yet in most vehicles there is nothing to indicate that a break light or headlight is not functioning properly. Some people are rather careless about having these things checked. I would like to see us highlighting the issue among our constituents and trying to get the Road Safety Authority to conduct a blitz to inform the public of the dangers posed by poor lighting and tyres.
I agree with the vast majority of what the two Senators said, especially the point made by Senator Mullins on conducting a road safety campaign to highlight the need for good visibility and tyres in wintertime. However, I am not sure about Senator Mooney's point on providing an incentive to get people into garages. Car owners have a duty of care to themselves and other road users and we cannot give them grants to have bulbs changed and so on. That would be impractical. If there is a defective light, it is up to the car owner to do something about it. It is up to the Minister for Transport or Minister for Justice and Equality to ensure the Garda Síochána enforces the law by stopping vehicles and thoroughly checking their lights. I am aware that every two years, before the national car test is due, drivers bring their car to a garage and have it serviced, which will often include having bulbs fixed or replaced. The question, however, is whether they continue to take an interest by asking a neighbour, for instance, whether their brake lights are working. One will know if one's headlights are not working properly because visibility will be poor. Motorists must fulfil their duty of care to other road users by ensuring their vehicles are not defective. This message should be included in the advertising campaign advocated by Senator Mullins for the winter months.
Before the Minister responds, I wish to clarify a matter. What I had in mind when I spoke earlier was the possibility of reducing the VAT rate on motor repairs in much the same way as was done for the restaurant industry when it was incentivised by a reduction in VAT. I am aware that Governments and civil servants in the Department of Finance traditionally abhor the prospect of any reduction in revenue. As anyone involved in business will know and experience will also show, however, where reductions in VAT are implemented, as in the case of restaurants recently, more income is generated because the reductions incentivise people to spend more and result in lower costs. The costs of motor repairs should be reduced. I am almost certain the top rate of VAT is applied to them.
Very good, but I understand labour is charged at the higher rate. I am thinking of something that may not necessarily adversely impact on the Exchequer. Senator O'Neill is correct that it is incumbent on everyone who has a car to have bulbs replaced. I am trying to show that people are cutting corners. I fully concur with Senator Mullins that it would be as cheap and effective if the National Roads Authority, through the good offices of the Minister, were to have an advertising campaign as we approach the winter. Many years ago, going back as far as my childhood, commercial television stations in the United Kingdom showed such advertisements but I see them less frequently. Once the Bill is enacted, the Garda will correctly use its resources to enforce the legislation owing to the potentially fatal impact of people driving defective vehicles. I suggest, however, that there may be a way of encouraging people to discharge their responsibilities, as Senator O'Neill stated, while assisting the motor industry to create jobs. I wish I could offer simple solutions because I know it is easy to raise problems but it is important to raise this matter in the context of the section.
The Senators' points are well made. It is envisaged that the Road Safety Authority will run a winter awareness campaign in the next few weeks. Having ordered 150,000 tonnes of salt or 50% more than was available to us last year, we can be sure that the winter will be very warm and I will receive terrible abuse for spending millions of euro on salt.
If we do not need it all this winter, we will find an alternative use for it. Older cars are definitely more dangerous than newer cars. While I do not have precise statistics, I understand cars that are more than ten years old are twice as likely to be in an accident as cars that are less than ten years old. I do not know whether the reason is that older cars are more likely to be defective or that modern cars have become safer. In fairness to the previous Government, it took two measures to address this issue. First, it introduced the scrappage scheme, about which I had doubts, which provided an incentive to change cars that were more than ten years old. Many people availed of the scheme. Second, it required that all cars older than ten years have an NCT done every year. The latter measure was controversial and I received many representations complaining about it from individuals, Deputies and Senators. It is being done for good reason, however, because cars of that age are more likely to be involved in accidents. The measures introduced by the previous Government were correct. I concur with Senator O'Neill that individuals are ultimately responsible for maintaining their car and ensuring it operates within the law.
As to what additional measures could be taken, many objections were raised when the scrappage scheme was introduced, with many people arguing that, notwithstanding the fact that it supported jobs in the retail motor sector, its real beneficiaries were those who needed the benefits least, namely, workers in Germany and other countries to which the money from car purchases flowed. An alternative proposal made at that time was to introduce some form of tax write-off or discount for those having improvements or repairs done to their cars. While this proposal may be worthy of consideration, it is a matter for the Minister for Finance rather than me. None the less, I believe there may be merit in introducing such a measure rather than another scrappage scheme.
I must admit that the purpose of the amendment is to correct an error we spotted in the text. Section 5 deals with the failure or refusal of a driver to produce a licence when a requirement is made to provide a breath specimen under sections 9 and 10 of the Road Traffic Act. Essentially, one is required to produce one's driving licence if one is breath-tested under sections 9 and 10. The issue relates to being a specified driver, that is, a novice, learner or professional driver if one does not provide a licence after a breath test. There is no requirement to provide a licence if one is arrested or taken to hospital first. The purpose of the amendment is to extend the provision to ensure that if a person who is breath-tested is taken to hospital or arrested, he or she must provide a driver's licence. If he or she fails to do so, it is assumed that he or she is a novice, learner or professional driver until he or she shows otherwise.
I ask the Minister for an assurance that the legislation does not contain legal loopholes which astute lawyers may exploit. Drink driving cases have frequently been thrown out by courts on technicalities. I appreciate that the Minister will not know definitively whether this is the case until the legislation is tested and can only do as much as he can on the basis of the legal advice made available to him. This is a key area, however, and people are increasingly taking a zero tolerance approach to drink driving offences. Daniel O'Connell once famously declared with regard to legislation going through the British Parliament that one could drive a coach and four through it. While I am not suggesting that is the case in respect of this Bill, there is no doubt lawyers will pore over this legislation because their clients will seek to avoid a drink driving conviction. I raise this question in light of the likelihood and experience to date. Particular sections of almost every Road Traffic Act have been challenged in the courts. In some cases a judge has effectively thrown out cases and one then finds that several dozen other people are affected by the judgment because the initial case was a test case. I raise the issue purely in that context.
Road traffic legislation is one of the most heavily litigated areas of the law and that is precisely why we must be so careful about it. I would love to give the Senator that assurance but cannot. It is the job of my officials, of me as Minister, and of Members of both Houses to ensure there are no loopholes. Those are the four locks and one hopes they all work. Unfortunately, there will be loopholes. The point is pertinent, however, because the following amendment closes a loophole that has arisen in recent times.
I move amendment No. 6:
In page 11, between lines 46 and 47, to insert the following:
"(b) In section 4 substituting the following for subsection (2)(a) and (b):
"(a) 20 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.",
(c) In section 5 substituting the following for subsection (2)(a) and (b):
"(a) 20 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."."
Cuirim fáilte roimh an Aire. The Minister is very welcome. The Road Traffic (No. 2) Bill allows for mandatory breath testing at the new limits, which will be introduced next month. It reduces the legal blood alcohol limit from 80 mg per 100 ml to 50 mg per 100 ml. The current limit is the highest in Europe and is found only in Ireland and the UK. My amendment seeks to resolve the unnecessary discrepancy between the 20 mg limit envisaged for learner and professional drivers and the 50 mg limit envisaged for all other drivers who hold a full licence.
I refer to a zero limit for all road users, as adopted in a number of countries. Some commentators have voiced what I believe to be legitimate fears, namely, that a zero limit would risk criminalising those whose driving is not impaired and that it would, in effect, criminalise those with small amounts of alcohol in their system perhaps because they had a couple of drinks the night before or have used alcohol in cooking. Surely the answer to that difficulty would be to introduce the lowest possible limit above zero for all drivers, a level that avoids the problem of being an absolute zero limit but which would effectively act as a zero limit? That is the reason for my amendment. It seeks to apply the 20 mg limit to all drivers regardless of the type of licence held or the length of driving experience of the driver.
Those who drive professionally, such as truck drivers, or, indeed, learner drivers will be subject under the Act to what is virtually a zero limit of 20 mg per 100 ml of blood. There is good international evidence to support such a limit. When Sweden, for example, lowered its limit in 1990 to 20 mg, fatal alcohol related accidents were reduced by 10%. I understand similar reductions occurred with similar beneficial effects in Austria, Belgium and France. Drivers who currently drive just below the legally permitted maximum level are estimated to be two to three times as likely to be involved in an accident as drivers with a zero blood alcohol limit. Dr. Denis Cusack of the Medical Bureau of Road Safety has stated in the media that the only way people can guarantee not being over the new lower limit is not to drink and drive. That is the kind of clear message this Bill should send out rather than the mixed message I believe it does in suggesting there are two classes of drivers who are allowed to take in differing amounts of alcohol. I do not suggest that is the reality as proposed. If we are to send out a message today which would support such campaigns as those of the Road Safety Authority, we should provide that people should not drink any quantity of alcohol and attempt to drive. We would not simply introduce a small reduction from the current level.
I return to the distinction between learner and fully qualified drivers regarding the quantity of alcohol that may be consumed. The Minister envisages that learner drivers and professional drivers would be liable for prosecution if found with a level of 20 mg, whereas drivers with a full licence for over two years are liable at a higher level. There is no rational basis for such a dichotomy. If we assume that a level of 20 mg above the level of absolute zero is necessary to avoid a scenario which may arise if an individual has consumed alcohol the previous day and may have residual alcohol in his or her bloodstream, there is a sound basis for having a 20 mg limit. The increase of the limit from 20 mg to 50 mg for full licence holders is puzzling when we consider that the imperative of the Bill is to make roads safer for users by ensuring all drivers have the lowest possible quantity of alcohol in their systems. I do not understand why a quantity of 20 mg in blood is considered as the safe limit for one class of driver and an additional 30 mg is allowed for another class of driver because up to 50 mg is considered safe. On what basis is the higher limit permissible? Is it the case that we think a driver of greater experience should be regarded as being better able to handle more alcohol in his or her system? There is an oversight here which has confused the issue regarding the quantity of alcohol one may consume. The message that should go out is that drivers should consume no alcohol.
I point to surveys that were undertaken in 2010 by the Royal College of Nursing in the United Kingdom. These are surveys of the general public which reveal widespread confusion about what constitutes a measure of alcohol. Most individuals are accustomed to taking alcohol in measures that are traditionally understood, for example, a pint, a half pint or a glass. It is not clear to many what quantity of alcohol it is permissible to imbibe before one is over the limit to drive. The distinction in the Bill between two quantities of alcohol for two classes of driver makes things worse and introduces a totally unnecessary element of confusion. This Bill still sends out a message that any quantity of alcohol is permissible before driving, which is wholly wrong. It runs contrary to the good work of the Road Safety Authority as well as to the good intentions of the Minister. It runs contrary to all our efforts to impress on people the danger of taking any alcohol and driving.
I refer again to the findings of the Royal College of Nursing survey which found that an estimated 80 road deaths per year are caused by drivers who are under the current drink driving limit. Studies show that even a small amount of alcohol results in slower reactions, longer stopping distances, a reduced field of vision and poor judgment of speed and distance in drivers. Furthermore, drivers are more likely to take risks and to believe, mistakenly, that they are in control. Once again this raises the problem of individuals, full licence holders, who as currently envisaged in the legislation may be under the limit of 50 mg but are above the lower 20 mg limit. I pointed out that this 30 mg of difference would still allow a series of negative effects on the drivers' reaction time, concentration and judgment.
The central question to be resolved is how a learner driver can go through the two year period envisaged by the Act at a 20 mg limit and suddenly rise to a 50 mg limit. Is it not the case that if there is a separate limit for young drivers, it could send out the message that once one gets through those two years one is then allowed to drink and drive, when the message we should give is that drinking and driving do not mix, whatever the age or experience involved?
A number of issues tend to be introduced when we talk about permitted drink driving limits and people having alcohol in their system. We must acknowledge there are serious vested interests involved - vintners, drink manufacturers, some politicians and perhaps even some members of the Judiciary. At times, and on issues such as this, vested interests seek to bring up extraneous issues. We will hear, for example, that people will lose jobs because they will lose their licence and a conviction of this kind is very serious. We must note, however, there has been change in this regard. Penalties are proportionate and loss of licence does not happen at the lower level. We hear arguments made about rural Ireland, from where I, too, come. People talk about the impact of the recession, pubs closing, lifestyle changes and the smoking ban. All sorts of issues are introduced. Again, however, we cannot make the argument that we ought to contemplate a greater risk to people, or even the possibility of some individuals dying, simply to keep pubs open. There is an argument in respect of the common good which must prevail.
An argument is also put forward to the effect that it is fine to drive when one has two or three pints on board or that the nanny state approach of using a mallet to crack a nut is being employed. It is obvious that it is not only those who are well above the drink driving limit who are involved in fatal collisions. The evidence shows that people who have consumed low amounts of alcohol can also be involved in such collisions. We must be aware of the big picture and view this issue in the context of the common good. I accept that there is a need to strike the correct balance between certain conflicting or opposing forces or arguments. I refer to individual freedom and rights in a democratic republic on the one hand and our responsibility to ourselves and our fellow citizens on the other. It is precisely because we are involved in trying to reconcile conflicting rights and aspirations that we must procure evidence-based research in respect of these issues. Such evidence exists and is compelling and supports the argument that there should be zero tolerance. The latter is what I am proposing.
The actions taken on foot of the road safety strategy during the past five years have succeeded in reducing the number of fatalities quite dramatically. It should be remembered that for every fatality, there are between seven and ten serious injuries. Such injuries can give rise to the need for overnight hospital stays at the very least. There are issues which arise in respect of definitions, especially in the context of the point at which an injury is classed as serious.
The Seanad should not send out the message that its objective is to dumb down the issues. There are serious issues which underlie policy change and consideration must be given to a range of matters in that regard. In outlining my thinking on this amendment, I have been obliged to explain such matters. That is perfectly legitimate. To the best of my knowledge, I have not repeated myself - and I have sought, to the best of my ability, not to do so - but have, rather, raised a number of points in support of my point. We will be sending out the wrong message if we try to dumb down this issue, mock people or in some way cast doubt upon someone who is presenting a careful and considered case in respect of a particular amendment. I am unapologetic, therefore, in asking for the Chair's indulgence for another couple of minutes.
As already stated, when considering these issues we must not just think in terms of deaths, we must also consider the position regarding serious injuries, particularly as the figures relating to the latter are quite high. The reduction in the numbers of fatalities is taking place against the background of an increase in both the number of vehicles using the roads and the number of young drivers. We can state, therefore, that the strategy is positive, that it has been working and that we should support it not only with strong laws but also with serious enforcement of such laws.
Essentially, those are the points I wish to make and my colleagues will be glad to hear that my contribution is almost at an end. We should not send out a mixed message but we will do so as long as there are two different drink driving limits in place. Zero tolerance is the way to proceed. There must be some permitted minimum to avoid the undesirable scenarios to which I referred earlier, namely, consumption of alcohol on the day prior to being tested, consumption through the use of alcohol in cooking or whatever. We must certainly avoid sending out a mixed message to younger people, especially if they form the view that there is some kind of higher permitted drink driving limit to which they may aspire after a couple of years. I am of the view that this sends out all the wrong signals. The issue of the identifiable measurability of permitted drink intake also comes into play. As matters stand, we have been presented with a recipe for unnecessary confusion and this could give rise to unfortunate consequences.
I thank Senator Mullen for tabling the amendment. The message is very clear - people should not drink and drive. That will always be the message we will put forward to the public. It is important to note that the law has always allowed for graduated penalties and still does so. If a person is found to have between 80 ml and 100 ml of alcohol in his or her blood, he or she is banned for from driving for 12 months. If he or she has between 100 ml and 150 ml in his or her blood, the ban is two years. For people who are found to have more than 150 ml of alcohol in their blood, the ban is three years. Graduated penalties are nothing new and they have been in place for quite some time. We are applying the lower limit of 20 ml to novice, learner and professional drivers because those in the first two categories have the least experience and are more likely to be involved in accidents and because people in the third category drive more than others and are also at high risk of being in accidents.
I have some sympathy in respect of the case the Senator makes. This matter first arose in the context of the debate on the 2010 legislation. I understand it was the intention of the previous Government to reduce the limit to 20 ml at that stage. A decision was taken to put in place a limit of 50 ml, however, and also to have a special limit of 20 ml for certain specified drivers. That matter was the subject of a lengthy debate in the context of the legislation to which I refer. I do not especially wish to reopen that debate in respect of this Bill. I am of the view that in a few years the limit will be reduced to 20 ml for all drivers.
There is another reason I cannot accept the Senator's amendment and that is, unfortunately, because it is defective. The amendment states:
"(b) In section 4 substituting the following for subsection (2)(a) and (b):
"(a) 20 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.",
(c) In section 5 substituting the following for subsection (2)(a) and (b):
"(a) 20 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."."
If Senators do not want to send out mixed messages, then they should not vote for the amendment because if it were passed the limit would be 20 ml for blood but 50 ml and 20 ml for urine and breath. This means that if a person gives a blood sample, there will be one alcohol limit, whereas there will be different limits in respect of urine or breath samples. If the House really wants to send out a mixed message, then Senators should vote for the amendment.
I thank the Minister for his reply. The final point he made was his strongest. I acknowledge what he said in that regard. What would normally happen in a situation such as this - even when amendments are drafted perfectly - is that a Minister would ask that the amendment be withdrawn and that he or she would reflect on the matter and return to it on Report Stage. That is really the logic of what the Minister said. He reminded me of St. Augustine while he was speaking and his position could be summed up by use of the phrase "Lord make me pure but not yet". It is quite clear that the Minister is in perfect harmony with the intention behind my amendment and I do not believe he has given a good reason for not introducing the necessary change. He indicated his sympathy but stated that he inherited a situation which he is going to allow to stand and that he is not willing to take the major step which, deep down, he believes should be taken. In that context, it is not acceptable to argue that a technical deficiency in the drafting of the amendment prevents its acceptance. I would be happy to withdraw the amendment if the Minister indicated his willingness to bring forward a corrected version on Report Stage. For that reason, perhaps we should not take all Stages of the Bill today. After all, the thrust of what the Minister said is that I am right.
The Minister is quite correct with regard to graduated penalties. He made a mistake, however, because there is a need to distinguish between penalties and offences. The amendment relates to something being an offence and, as such, it does not refer to the penalties. One can put in place all the graduated penalties one wishes but that is a different matter to deciding whether something should be an offence. That is a distinction which the Minister ought to acknowledge. It is certainly the case that it could be appropriate to have graduated penalties. It is a different issue. A penalty is a consequence of committing an offence but I am talking about what should or should not be an offence. We ought to make that distinction.
Given that I have spoken for the past couple of minutes I hope the Minister will have a massive change of heart. I hope the good Senator acting for the Leader will now ask for a change to the Order of Business and we will not take Report Stage today. Perhaps my naïveté is showing.
I assure Senator Mullen that we will complete all Stages today. There are a few points to support the Minister, who is not sending out mixed messages in the legislation to professional or young drivers. As people gain experience, they become better at what they do. We can see how much better Senator Mullen was after two years in this House.
After two years a young person will have learned a bit more about driving. Senator Mullen's amendment should not be put to the House because it is too draconian. We live in a rural country and although the Senator said he was from rural Ireland, he does not live there. Some 64% of the population in this country live in rural areas.
All research has shown that one drink will put a person over the 50 milligram limit, so there is effectively zero tolerance. The system is graduated and a person will be given three penalty points and fined €200 if he or she is caught over the limit. That person will be put off the road for a second offence. There is a small bit of leeway but this still affects those in rural Ireland. This Christmas, every trifle that a mammy makes in the country will have alcohol in it. A mammy with a heavy hand for sherry or whiskey in a trifle would be-----
There are no mixed messages. The Minister's Bill equates to zero tolerance as all research has shown that one drink will put a person over the limit and facing the graduated penalties of three penalty points and a fine of €200, with stiffer penalties if the blood alcohol level is above 80 mg of alcohol per 100 ml of blood. I ask people in the House to vote against the Senator's amendment.
I support the Minister's position. There are two limits, with one for a standard driver and another for the learner and professional. That is logical and reasonable so I accept there should be a graduation in that respect. The Minister made the most salient point of the day and the Senator would admit that his amendment cannot stand because it would be reckless.
We know the 2010 Bill was quite difficult for the Government at the time and it had to face down serious lobbies. It came up with a reasonable solution. Half my water glass filled with beer would put a person over the limit. Senator Mullen envisages a position where a person could be put over the limit with a particularly strong aftershave or using a mouthwash. One could go to a ridiculous extent. The Minister has said we effectively have zero tolerance and we will be counting angels on the top of pins if we go down the road suggested by Senator Mullen in his amendment.
Senator Mullen is correct that it is important to make a distinction between graduated penalties and graduated offences. I accept that. The limit will go to 50 mg of alcohol per 100 ml of blood for most drivers and that is a low limit. As Senator O'Neill noted, it will probably be less than a pint of beer, depending on the size of the person in question and other factors. The evidence is that impairment kicks in around those levels, although any amount of alcohol will cause some impairment.
When these lower limits were introduced in some of the states of Australia, there was a 10% reduction in deaths. I hope we will be ready to go with these for the bank holiday weekend and the instruments will be calibrated for that reason. I am not closed to the possibility that at a later stage, after we see how the limit operates, we can consider a limit of 20 mg for all drivers.
Section 8 contains a number of technical amendments to the Road Traffic Act 2010. This amendment relates to section 12 of the 2010 Act, which deals with the obligations on drivers to provide breath, blood or urine specimens following arrest at a Garda station. The amendment extends the provision so that a driver, following arrest, can be required to provide a specimen at a hospital if a position arises where a driver must be transferred to hospital before the requirement to provide a specimen can be made of him or her at the Garda station.
This arises from a loophole arising in recent months. Essentially, if somebody has been arrested, the sample can only be taken at a Garda station and not at a hospital. As it stands, if a person is involved in a collision the sample can be taken at a hospital or Garda station but if a person is arrested, the sample can only be taken at a Garda station. A person who has been arrested may claim to be having a heart attack, stroke or some kind of health event before being taken to hospital. Currently, that person could not have a sample taken so this will correct the anomaly.
I raised this matter on Second Stage. The Bill allows for a garda to enter a hospital without a search warrant in order to take a sample from somebody admitted to hospital. I understand this can only be taken if the medical authorities allow it and judge that it would not be injurious to an individual's health. What implications will that have for medical practitioners such as junior doctors and others in accident and emergency departments? Has there been a level of consultation with the medical profession in this regard? What protections are envisaged for doctors and nurses who allow for a sample to be taken and where the patient has a sudden deterioration in health or even dies? This is a significant question that was not really addressed on Second Stage.
If a doctor believes it would be prejudicial or injurious to the health of a patient, that doctor can direct that a sample not be taken. Having worked in accident and emergency departments for a number of years, my practical experience is that any patient who is seriously ill and requiring emergency treatment will have an intravenous line inserted either as a first or second step. It would be sent for analysis. Currently that blood sample cannot be used for testing because the examination must be done by a doctor using the chain of evidence.
It would rarely be the case in a hospital setting that taking a blood sample from somebody would injure or damage health. The only scenario where it might arise is when a person is having a cardiac or respiratory arrest and needs to be intubated or shocked. The last thing one would want in that case is somebody taking a blood sample but there is no reason that half an hour or an hour later the sample could not be taken.
However, it is important to point out that even if a sample is taken by a patient when he or she is in hospital or unconscious, it cannot be tested and used against him or her unless he or she consents to it.
I thank the Minister for that information. I am still not entirely happy about the position. The last thing a genuinely ill patient in hospital, and that scenario in itself is traumatic, would want is to have invasive treatment on foot of the law of the land pursuing the person into the hospital. Such a patient is in a very vulnerable position. In addition, the doctor, in many cases it will be junior doctors or nurses, may be forced into deciding that a sample can be given by a patient, who it could retrospectively be proved was not fit to have such invasive treatment at that time.
On the points raised by Senator O'Sullivan, I know he has the interest of an injured person at heart but the medical profession in this country have the expertise, and the Minister's knowledge of the subject should be noted. A doctor will not allow a person to have a blood sample taken if that may pose a danger to the person. Some people involved in road accidents have feigned injury and appeared to faint and have been brought in an ambulance and no sample can be taken from them. This provision is to close that loophole. I support the Minister on this amendment.
(ii) exceeded 80 milligrammes but did not exceed 100 milligrammes of alcohol per 100 millilitres of blood, exceeded 107 milligrammes but did not exceed 135 milligrammes of alcohol per 100 millilitres of urine, or exceeded 35 microgrammes but did not exceed 44 microgrammes of alcohol per 100 millilitres of breath, 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),
(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).",
This amendment relates to section 29 of the 2010 Act which deals with the fixed penalty notice for drink driving. Subsection (8) sets out the penalties and disqualifications in regard to certain limits. However, the blood limits are the only limits set out in the subsection. As a result, this amendment proposes to include the equivalent information in respect of breath and urine limits. The amendment also makes a minor correction to a reference in subsection 11(b).
A new subsection 18(a) is being inserted to bring consistency to the legislation, as in all other provisions dealing with the fixed charge notices. This amendment provides that the delivery docket or receipt by An Post or another postal provider is admissible as evidence as proof of postage in respect to a fixed penalty notice. Essentially, this Government amendment does two things. First, it corrects the mistake Senator Mullen almost made with there being mention in this section of only blood and not of urine and breath. It corrects that error. It allows for a delivery docket or receipt by An Post or another postal provider to be proof of postage in the case of a fixed penalty notice - in the case of a fine, not a summons.
If I heard the Minister correctly, he indicated, based on his experience as a medical doctor in an accident and emergency department, that one of the first medical procedures carried out on an injured person is that a blood sample is taken. He said that under existing law such a blood sample cannot be used and that he is amending the Act to change that. Does that suggest that two blood samples would be taken, that one would be taken for internal medical use to treat the patient and, subsequent to that, a further blood sample would be taken? I am thinking of a timeline where a garda would arrive subsequent to triage and treatment being administered. Is there any suggestion or inference that two blood samples may be taken from the person?
As I understand it, and I may not be 100% correct on this, when a person is brought to an accident and emergency department and that person is a genuine major emergency, first he or she will probably be given oxygen and, second, he or she will have an IV line inserted in a vein in order that the person can be given fluids. However, before he or she is given fluids samples are drawn to be sent to the laboratory immediately to establish what is wrong with the person.
As I understand it, those samples are not used and cannot be used to test for alcohol and drugs - although they are often used to test for alcohol and drugs - as evidence against a person. The sample that is used as evidence in court must be taken subsequently and put into a little white pot with red tape around it. I am not 100% certain on that. I understand that in the UK that is not the case. There the samples taken by doctors that can be used in court but again the patient has to consent to that.
Although not to labour the point as we are late in the day in our consideration of the Bill, would it not have been wiser to have legislated for making it possible to use the first medical sample that would have been taken, which would have been taken in a proper medical and non-confrontational way without any legal pressure on the patient? That will have to be addressed sooner rather than later.
I will not repeat what I said during this debate or the debate earlier in the week. The House has done very good work today. Road safety has been one of the big success stories of the past ten years with road deaths falling from more than 400 deaths a year ten years ago to, hopefully, fewer than 200 this year. That has happened for a number of reasons, one being a crackdown on drink driving in particular. The work that has been done by the House this week will allow us, hopefully in the next few weeks, either at the October bank holiday or a little later, to implement these new limits and breath tests, and based on what has occurred in other counties, to reduce the number of fatal collisions by, perhaps, 10%. We could potentially today, having done this work, save 15 or 20 lives next year and every year thereafter. I thank Senators for their co-operation in doing that.
I thank the Minister for his attendance and compliment him on his handling of this Bill. I also thank his officials. The Minister was gracious enough to indicate on Second Stage that the previous Fianna Fail-led Government was positive and proactive on road safety measures and some colleagues on the other side of the House were gracious enough to concur with that. The Bill was in gestation during a very difficult time when there has been a good deal of pressure on people. We have come to the end of the road now, pardon the pun, and I welcome that.
I would like to be associated with the remarks made by Senator O'Sullivan. I thank the Minister and his officials for coming to the House. Road traffic legislation can be an emotive issue, especially in regard to some of the sections that we had to pass. I thank all the Senators for their contributions. The Bill will increase awareness among people of the danger of drink driving. It sends out a strong message from this House and from all Members of the Oireachtas that drink driving will not be tolerated. The Bill will help to protect the people of this country.
I join the Members of the House in thanking the Minister. This is a major issue. In the period prior to our being given the number of road deaths, I believe 600 people used to be killed on our roads in the decade before that. It is a success story to reduce the number of road deaths below 200. That is an achievement by everybody concerned. As Senator O'Sullivan said, there were lobbies that fought this and I am glad they were resisted.
The lifespan of the current road safety strategy that covered the time of the former Ministers, Martin Cullen and Noel Dempsey, ends in 2012. It has been a huge success. We have many other elements when we come to tackle this problem to draw up the next one. I thank the Minister for speaking of his experience in accident and emergency departments and should he wish to return to the House as he prepares the next strategy for the next shot at this problem, he will be most welcome.
I would like to examine other issues, including the problem in regard to cross-Border driving in counties Donegal and Cavan, which was mentioned on Second Stage. Men under 35 years of age are still a major casualty group. What can be said about that? There is also the lack of seatbelt use. Could speed cameras tell us if mobile phones are being used? People using mobile phones are a major source of complaint and our sanctions for that have not been a success. However, that is all for the next strategy after 2012. I welcome what the Minister has done here today. He is aware of the co-operation he will receive from the House and he will be very welcome on the next occasion.
Ireland has the second or third lowest accident rate in the OECD countries. That is a huge success for all the people involved, despite the strange lobbying I used to encounter on the National Economic and Social Council where there was strong opposition from rural groups. There is more in rural Ireland than rural publicans but they certainly raised a lobby. Any activity that requires the deaths of so many people must be closely regulated. I commend the Minister for all his initiatives in that regard.