Road Traffic Act 2016
The Act provides for a number of measures to improve safety on roads:
- Provision for roadside tests of oral fluid for the presence of drugs;
- A new offence of driving with the presence of certain specified drugs in the blood;
- Measures to give effect to agreement between Ireland and the UK on mutual recognition of driver disqualifications;
- The creation of a new special speed limit of 20km/h;
- A number of technical
Intoxicated Driving Offences
This Part addresses a number of matters relating to driving with drugs in a person’s system. Provision is made for roadside testing of oral fluid for the presence of drugs. A new offence of driving with the presence of certain specified drugs is also created, and a number of necessary additional amendments made to assist in tackling driving under the influence of drugs.
The 2016 Act amends the 2010 Act’s definition of “analysis” – which relates to the operations carried out by the Medical Bureau of Road Safety when analysing specimens for intoxicants – to add that the term includes determining the concentration of specified drugs in specimens of blood. This is necessary in order to enable the Bureau to perform its functions in relation to the new offences created in section 4 of the present Act.
A medical exemption certificate allows for cases where a person who has tested positive for a specified drug has been prescribed that drug lawfully for medical reasons.
It was an offence under sections 4 and 5 of the 2010 Act to drive or be in charge of a mechanically propelled vehicle while under the influence of an intoxicant – this means that both presence of the intoxicant and impairment must be proven. The 2016 Act also makes it an offence to drive or be in charge of a mechanically propelled vehicle while the person has in their system more than a certain level of alcohol – in this case proof of presence only is necessary.
Drugs & Driving
The existing legislation made the presence of specified drugs, at or above specified levels, while driving or in charge of a mechanically propelled vehicle, an offence analogous to that for presence of alcohol.
The 2016 Act amended section 4 of the 2010 Act by establishing the new offence of driving with the presence of certain specified drugs – these are cannabis, cocaine and heroin – at or above a specified concentration in the blood. The levels are to be measured in blood – by contrast to alcohol, where concentrations of breath, blood or urine may be used – based on scientific advice that blood is the best indicator of recent use in the case of drugs.
There is a medical exemption where a person has been prescribed a drug covered by the new offence – the specified drug in question is a medicinal cannabinoid. Currently a brand of medicinal cannabinoids (Sativex) has regulatory approval in Ireland since 18 July 2014, but it is not yet available on prescription.
It is indicated for prescribing to patients with multiple sclerosis (MS) for the purposes of symptom improvement in adult patients with moderate to severe spasticity due to MS who have not responded adequately to other anti-spasticity medication and who demonstrate clinically significant improvement in spasticity-related symptoms during an initial trial of the therapy.
This exemption applies only to the new offence of presence of the drug only – if a person has the presence of the drug and is impaired, they will still be liable to charge under the existing legislation. It will be an offence to sign a medical exemption certificate containing information which the person knows to be false.
The offence of presence of specified drugs above a specified level is provided for by the 2016 Act while the medical exemption and offence of knowingly signing a medical exemption containing false information are created.
The 2016 Act appends a Schedule to the 2010 Act setting out the drugs specified. These are cannabis, cocaine, and heroin. Also included are two metabolites which are indicative, respectively, of the recent presence of cannabis and of cocaine.
The 2016 Act extends Garda powers of entry in relation to alcohol testing so that they also apply to the new preliminary drug testing introduced. There is provision for a preliminary breath testing for alcohol – to provide the necessary powers for members of An Garda Síochána to conduct preliminary testing for the presence of drugs, using devices which test for the presence of drugs in oral fluid.
The 2016 amends the legislation so that people who have consumed ‘an intoxicant’ rather than ‘intoxicating liquor’. As a result, the provisions will henceforth apply to people who have consumed alcohol (as at present) AND people who have consumed drugs.
The power for a member of the Garda Síochána to require a person to accompany them to a place at or in the vicinity in order to undergo a preliminary breath test for alcohol is amended by allowing that the person may be required to accompany the member or another member.
The 2016 Act creates a new power for Gardaí to require a person to provide a specimen of oral fluid, using an apparatus for indicating the presence of drugs in oral fluid. This is a preliminary test for the presence of drugs and is analogous to the preliminary breath test for alcohol under the 2010 Act. G
Garda powers which parallel those relating to preliminary breath tests for alcohol are also created in relation to the new oral fluid tests for drugs – the power to require a person to accompany them (or another Garda) to a place at or in the vicinity in order to conduct the oral fluid test, and the power to require them to wait for up to one hour if the oral fluid test apparatus is not available to the member at that time.
There is a presumption in a prosecution, until the contrary is shown, that an apparatus provided by a Garda for the purpose of taking an oral fluid specimen is an apparatus for testing for the presence of drugs in oral fluid. This mirrors the existing presumption in law regarding the apparatus used for preliminary testing for alcohol in the breath.
The 2016 act expands the powers of Gardaí at Mandatory Alcohol Testing (MAT) checkpoints, so that preliminary oral fluid testing for drugs can be undertaken at these checkpoints as well as the current preliminary breath tests for alcohol. Such checkpoints are to be known as known as Mandatory Intoxicant Testing (MIT) checkpoints. The 2016 Act changes the reference in the legislation from ‘Mandatory Alcohol Testing’ to ‘Mandatory Intoxicant Testing’.
The 2016 Act enables Gardaí to test for drugs in oral fluid at checkpoints, in addition to the current power to test for alcohol in breath. The change necessitates a consequential change, while the presumption that an apparatus provided by a Garda to take a specimen of breath is an apparatus for indicating the presence of alcohol in breath is mirrored in the 2016 Act which creates a presumption that an apparatus provided by a Garda for taking a specimen of oral fluid is an apparatus for indicating the presence of drugs in oral fluid.
Tests & Specimens
The 2016 Act amends impairment tests provisions to allow a Garda to require the person to accompany him or her, or another Garda, to a place at or in the vicinity in order to conduct impairment tests safely.
There is power for members of the Gardaí to require a person who has been arrested under section 4 or section 5 of the 2010 Act to provide an oral fluid specimen for testing for the presence of drugs. These tests are not evidentiary but will be of assistance to Gardaí in cases where a person has been arrested on suspicion of presence of an undetermined intoxicant. In a case where oral fluid tests confirm the presence of drugs, the Gardaí may then choose to require a blood specimen, rather than allowing the person the option of providing a urine specimen under the existing provisions.
The Garda may require provision of a specimen of blood in cases where a member of the Garda is of the opinion that a person has committed an offence under the 2010 Act, inserted by section 4 of the 2016 Act. These offences relate to the presence of specified drugs, and medical and scientific advice indicates that blood only, rather than an option of blood or urine, can enable specific concentrations of these substances based on recent use to be established.
There is no such relationship between recent drug use and urine. The existing legislation, which empowers Gardaí to ask for blood but allows the person to offer urine instead, will remain in force for existing offences under sections 4 and 5 of the 2010 Act and is therefore unchanged in its effect. The power to require blood only will relate only to the new drug offences.
The 2016 Act amends the functions of the Medical Bureau of Road Safety, in order to take account of the new drug offences and new preliminary drug tests. It amends the Bureau’s functions to include testing for the concentration of drugs in blood. This enabled the Bureau to test specimens of blood for new drug offences.
The 2016 Act empowers Bureau to arrange for the supply and testing of apparatus to test for the presence of drugs in oral fluid. The Bureau already supplies and tests preliminary breath test apparatus (i.e., the roadside breath test apparatus) and evidential breath test apparatus (i.e., evidential breath test machines in Garda stations).
There is amended provision for the analysis of specimens by the Medical Bureau of Road Safety. It expands the Bureau’s procedures to allow for determination of concentrations of drugs. This is necessary to establish the evidential base for cases under the new ‘presence only’ drug offences.
In a case under section 4 or 5 or the 2010 Act it is not necessary to prove that the person did not consume intoxicating liquor after the time of the alleged offence but before a specimen (of breath, blood or alcohol) was taken. This is amended by the 2016 Act replace ‘intoxicating liquor’ with ‘an intoxicant’ and to add a reference to the new power to take a specimen of blood only,
Where a person is charged with the presence of alcohol in their system. they may argue that they had consumed alcohol after the alleged offence and before giving a specimen, and that but for that consumption the concentration of alcohol in their system would have been lower than that registered in the test and therefore below the threshold for charges brought.
As presence of specified drugs at or above a specified concentration is now to be an offence, the 2016 Act replicates the existing “alcohol” provisions in the case of specified drugs. The effect is that a court shall disregard evidence of consumption of drugs after the alleged offence but before the taking of a specimen, unless it is proven by or on behalf of the defendant that but for that consumption they would have been below the specified concentration of the drugs.
The 2016 Act establishes presumptions relating to who is to be considered a designated doctor or nurse for the purpose of taking specimens. Reference is added to the taking of specimen of blood under the new procedures relates to statements of refusal by a designated doctor on medical grounds to take a specimen.
A person may offer a defence that there was a ‘special and substantial reason’ why they refused or failed to comply with a requirement to provide an evidential specimen of breath or blood under existing legislation. This is amended by the 2016 Act to include a similar defence in the case of refusing or failing to comply with the new requirement under 2016 Act.
The 2016 Act provides for driving disqualifications consequent on conviction for certain offences. Three new offences are created in the Act –
- presence of a specified drug while driving,
- presence of a specified drug while in charge of a mechanically propelled vehicle (both in section 4 above), and
- failure to provide a blood specimen when required (section 9 above).
The 2016 Act creates consequential disqualifications for these offences. The period of disqualification for the new drug offences is a minimum of one year for a first offence, and 2 years for a second or subsequent offence under the 2010 Act. For refusal or failure to provide blood, disqualification will be for four or six years, which are the same periods which apply for refusal or failure to provide specimens under existing legislation.