Intoxication Procedure

Requiring Breath Sample

A Garda has the power to require a person to give a sample of breath. This applies when, in the opinion of the member, the person has consumed an intoxicant, is committing or has committed an offence under the Road Traffic Act is or has been in a vehicle involved in a collision or which is a has-been involved in an event in which death or injury has occurred or is claimed to have caused to a person injuries of such a nature as to require medical assistance for the person at the scene for that person be brought to hospital. Because refusal to do so is a criminal offence, the person must be informed of this consequence.

The Gardai may require any such person to provide a sample of breath to accompany them to a place, including the vehicle and provide a sample of breath into an apparatus.  Where the Garda Siochana member does not have the apparatus, he can require the person to wait for up to an hour.

The breath apparatus is prima facie evidence of what it purports to exhibit.  It does not automatically constitute the event itself in the same way that the blood specimen or urine specimen concentrations do.

Refusal to comply with any requirement is an offence subject to a Class A fine or imprisonment of up to six months or both.  A member of An Garda Siochana may arrest without warrant a person who, in his opinion, is or has committed an offence under the section.

A Garda has power to require a person to give a specimen of oral fluid from his mouth for the purpose of detecting drugs using an apparatus for indicating the presence of drugs.

Arrest

A member of An Garda Siochana may arrest without warrant a person who, in his opinion, is committing or has committed any of the principal intoxication offences.  A person arrested must be informed of their rights in the usual way under Criminal Justice legislation. As is generally, case failure to comply with the requirements on arrest and detention does not necessarily exclude evidence obtained.

A member of An Garda Siochana may arrest a person who he is of the opinion is committing or has committed an offence without a warrant. An Garda Siochana has powers to require persons who are either involved in accidents or who, in their reasonable opinion, have consumed intoxicating liquor or committed any of the above offences to stop.

Giving Sample

A member of Garda Siochana  can require a person at a Garda station or in the hospital

• to provide two samples of breath
• to allow a designated doctor or nurse to take a blood specimen or a urine specimen at the option of the person concerned.

If the doctor or nurse is unable for medical reasons to take the sample or believes that the person concerned is unlikely or unable to comply within the requisite time period, another requirement may be made. A person who refuses or fails to comply with the requirement is guilty of an offence and is subject on summary conviction to imprisonment of six months or a fine of up to €5,000 or both.

The Gardai are entitled to a reasonable time to perform the particular procedures. However, if there is an unreasonable delay without justification, the procedures will be invalidated.

Alternative Samples

Where a person is arrested under certain of the above offences or in the opinion of the member of An Garda Siochana has consumed an intoxicant the Garda may at his discretion require either or both of the following require a breath test line; and require the person to permit a designated doctor to take a blood specimen or urine sample.

A person is obliged to provide a specimen of blood or urine. If in order to avoid the obligation to give a blood sample a urine sample must be provided rather than merely agreed to be provided.

This specimen then amounts to evidence of the relevant blood alcohol concentrations for the purpose of the above offences.  As with the breath specimen offences it is an offence to refuse to co-operate or frustrate the process.

Failure to comply is an offence subject to a fine of up to €2,500 or six months imprisonment or both.

Procedure

Where a person provides two specimens of breath, and one has a lower alcohol concentration the specimen with the lower concentration is taken into account.

Where a breath test is positive, the person shall be supplied with two identical statements produced by the apparatus in the prescribed form stating the concentrations. The person is to sign the same and return it to the member. Failure or refusal to do so is an offence subject on summary conviction to a fine of €5,000 or three months imprisonment or both.

Where a designated doctor or designated nurse takes a sample, it is to be divided into two parts, placed in separate containers, and sealed. One specimen of blood or urine is to be offered to the person who may retain either.

The member of  Garda Siochana is to forward the sample to the Bureau with a completed form. If the person does not accept the duplicate that is forwarded to the Bureau as well.

The medical practitioner is to complete and sign a form prescribed which contains certain specified information. The doctor is not required to be a witness in the prosecution proceedings.

It is presumed that the required procedures have been complied with. In respect to certain procedures, failure to comply may be grounds for acquittal.

Detention

Where a person has been arrested suspected of having committed one of the above intoxicant offences and An Garda Siochana believe him to be a threat to the safety of himself or others, he may be detained for a period of up to six hours after arrest as An Garda Siochana consider necessary for his own or safety of others.

An Garda Siochana are obliged, if possible, to inform a relative of the detention unless the person does not wish anybody to be informed.  The person may be released into the custody of a relative or equivalent person, applies to relatives or the person nominated by the detained person.

Medical Bureau

The Medical Bureau of Road Safety was established pursuant to the Road Traffic Acts. One of its key functions is the receipt and analysis of specimens of blood and urine under the Road Traffic Acts. It issues certificates required by the legislation for the purpose of prosecutions. It also has more general functions in relation to research.

The procedure at the Bureau is specified under the Road Traffic Act. It undertakes an analysis of the specimen for the purpose of determining and issuing the certificate. The analysis is to be carried out as soon as practicable. The certificate showing the result of the analysis is to be sent to the Garda Siochana from which it was sent. A copy of the certificate is to be forwarded to the person to whom the specimen relates as soon as practicable.

Excuses for Failure

There are defences to being required to take specimens of blood, urine or breath where special and substantial reasons need to be exceptional for the refusal or failure to comply.  Even if this is accepted, the refusal to provide specimens may be taken into account in relation to the general offence, i.e., not comprising the failure of the tests. A person who claims a medical exemption may be required to produce the medical certificate of exemption.

In a prosecution for failure or refusal to provide specimens of breath, it is a defence if the defendant satisfies the court that there are special and substantial reasons for such refusal or failure and that as soon as practicable, he or she complied (or offered but was not called upon to comply with the requirements in relation to the taking of a specimen of urine or blood.

In the case of a refusal to comply with the requirement to permit a doctor or designated nurse to take a specimen of blood, it is a defence to show that there was a substantial special reason for failure and that as soon as practicable after failure or refusal he or she complied with the requirement to provide a specimen of urine.

In a prosecution for failure or refusal to perform a test, it is a defence to satisfy the court that there was a special and substantial reason for the failure or refusal, and as soon as practicable thereafter, here, she complied or offered but was not called upon to comply with an alternative requirement.

In a prosecution for an offence for failing or refusing to comply with the requirement to permit a doctor or nurse to take a specimen of blood, it is a defence for a charge under section 13 B 2018) for the defendant to satisfy the court that there was a special and substantial reason for so doing.

Evidence

The legislation is structured so as to create presumptions facilitating convictions for breach of legislation based on analysis of samples.   It is presumed that the procedure has been complied unless the contrary is shown. There are provisions for presuming that the procedure in respect of taking samples, qualifications of the relevant parties, steps taken by the medical bureau are valid until otherwise proved.

It is presumed that the apparatus was working and accurate. It is presumed that it has worked lawfully. Because of the presumption that the equipment is working accurately there are strict requirements to comply with the statutory conditions.

It is not necessary to prove that the person concerned didn’t consume alcohol between the time of the offence, e.g. driving, and the time of the relevant test or sample.

It is presumed that the apparatus in each instance is what it purports to be. A requirement is not made if, in the opinion of the Garda, it would be prejudicial to the health of the person concerned or if, on the advice of a doctor or other medical personnel attending the scene, such requirement would be prejudicial to the health of the person.

A statement duly completed as to the breath test reading is presumptive evidence as to the facts stated in this without proof of signature.A duly completed form in relation to splitting samples is presumptive evidence of the facts stated in it. A certificate by the Medical Bureau is presumptive. It is not necessary to prove signatures or such.

There is a presumption that those taking a sample were either designated doctors or designated nurses.

Specimens

Once a person provides two specimens of breath and the apparatus determines that the concentration of alcohol in each specimen is different, the lower is taken into account.  Where the apparatus shows the specimen to exceed the blood alcohol concentration, the person concerned must be supplied with two statements automatically produced by the apparatus and certified by the member stating the concentration determined by the apparatus.  The person must receive the same.

Where the blood or urine samples are taken, they must be divided in two, placed in containers and sealed.  One part must be offered to the person concerned with a statement in writing that he may retain either container.

The sample is sent to the  Medical Bureau of Safety as soon as practicable. The Bureau is an independent agency which certifies the specimens. The Bureau analyses the sample and determines the blood alcohol concentration or drug concentration and certifies the position to An Garda Siochana.

Attempted Frustration

It is an offence for a person to take alcohol with the intention of frustrating a prosecution under the above offences.  The offence is subject to a fine of €5,000 or imprisonment for a term of up to six months or both. Where the court is satisfied that the action was so taken it may convict the person of the offence accordingly.

Where this is alleged by the defendant, the evidence is to be disregarded unless he is satisfied that but for the consumption, the concentration would not have exceeded the prescribed blood alcohol concentration level.

It is not necessary in the hearing of the charge to show that the defendant had not consumed the intoxicant after the time the offence was alleged to have been committed. If a person gives evidence that he or she has consumed intoxicating liquor before the specimen but after driving, the court is to disregard the evidence unless satisfied that but for the consumption, the concentration of alcohol would not have exceeded the relevant level.

Related Powers

A person may be required to provide a blood or urine sample in the hospital where he is injured, etc., as a result of the motor accident.  Similar provision applies.  Both An Garda Siochana and a designated doctor may enter the hospital where an injured person or person who claims to have been injured is suspected of having consumed alcohol in order to take the relevant sample.

A person may be obliged to provide a blood or urine test in a hospital on much the basis as would apply in a Garda station under the standard procedure. The test is to  be taken by a designated doctor or designated nurse.

Most of the same provisions and defences apply. Unlike the principal offences, the Garda does not need to form an opinion regarding the consumption of intoxicants.

For the purpose of arresting a person in respect of the above offences, a member of An Garda Siochana may enter without warrant using reasonable force if necessary any place, including a dwelling or the person is or where the member with reasonable cause suspects him to be in the case of a dwelling where he has actually observed the person so entering.  He may enter without warrant any place, including the cartilage of the dwelling, but not the dwelling where the person with reasonable cause suspects the person to be.

A member of An Garda Siochana may for the purpose of making a requirement enter without warrant any hospital where the person is or where the member suspects with reasonable cause to be.

Injury Taking Specimen

Where, in a public place, an event occurs in relation to a mechanically propelled vehicle in consequence of which a person is injured, or claims or appears to have been injured, and is admitted to, or attends at, a hospital and a member of the Garda Síochána is of the opinion that, at the time of the event, the person was driving or attempting to drive, or in charge of with intent to drive or attempt to drive (but not driving or attempting to drive), the mechanically propelled vehicle, then, unless the member is of the opinion that the person should be arrested, the member shall, in the hospital, require the person either—

• to permit a designated doctor or designated nurse to take from the person a specimen of his or her blood or
• at the option of the person to provide for the designated doctor or designated nurse a specimen of his or her urine,

and if the doctor or nurse states in writing—

• that he or she is unwilling, on medical grounds, to take from the person or be provided by the person with the specimen to which the requirement in either of the foregoing paragraphs is related, or
• that the person is unable or unlikely within the period of time below, as the case may be, to comply with the requirement,

the member may make a requirement of the person under this subsection in relation to the specimen other than that to which the first requirement related.

Refusal

A person who, following a requirement

• refuses or fails to comply with the requirements, or
• refuses or fails to comply with a requirement of a designated doctor or designated nurse in relation to the taking under that subsection of a specimen of blood or the provision under that subsection of a specimen of urine,

commits an offence and is liable on summary conviction to a class A fine or to imprisonment for a term not exceeding 6 months or to both.

It is not an offence for a person to refuse or fail to comply with a requirement where, following his or her admission to, or attendance at, a hospital, the person comes under the care of a doctor or nurse and the doctor or nurse refuses, on medical grounds, to permit the taking or provision of the specimen concerned.

Before making a requirement of a person, the member of the Garda Síochána concerned shall consult with a doctor treating the person, and if a doctor treating the person advises the member that such a requirement would be prejudicial to the health of the person the member shall not make such requirement.

A member of the Garda Síochána may, for the purposes of making a requirement of a person, enter without warrant any hospital where the person is or where the member, with reasonable cause, suspects the person to be. A designated doctor or designated nurse may, for the purpose of taking from a person a specimen of his or her blood or being provided by a person with a specimen of his or her urine, enter any hospital where the person is or where the doctor or nurse is informed by a member of the Garda Síochána that the person is.

The above powers do not affect any other power of arrest conferred by law. It is not a defence in any proceedings, other than proceedings for non-production, to show that a member of the Garda Síochána did not make a requirement under this power.

The Probation of Offenders Act 1907 does not apply to the above  offence.

Impairment Tests

Where a member of an Garda Siochana is of the opinion that a person driving or attempting to drive or in charge of a mechanically propelled vehicle with intent to drive in a public place is under the influence of an intoxicant, he may require the person to accompany him or her to a Garda Siochana in order to perform impairment tests in accordance with regulations.

The Minister may prescribe the types of tests  to be performed and give instructions in relation to the same. A person who without reasonable excuse fails to comply with a requirement made is guilty of an offence. This is subject to the same penalties as conviction for the principal offence. A person may be arrested without warrant where is committing or has committed an offence of failing to comply with the requirement.

Regulations specify the forms of the impairment tests. They include

• Examination of eyes, including dilation
• Reddening
• Balance test
• Walk and turn test
• One leg stand test
• Finger and nose test

There are detailed requirements and illustrations in the legislation for completing performance of the test. The regulations specify the consequences and inferences that may be drawn from impaired performance in the test.

Obligation to provide Oral Fluid

The  Road Traffic Act 2010 provides for circumstances in which the Garda conduct preliminary breath tests for alcohol, and preliminary tests of oral fluid for drugs. These tests are not evidential, but exist to assist a member of the Garda in forming an opinion as to whether a driver has consumed alcohol or drugs.

There is provision for  preliminary testing in circumstances other than those at a checkpoint. Testing at checkpoints is dealt with separately.

There are four sets of circumstances in which a Garda may or shall conduct preliminary intoxicant tests. These circumstances are where, in the opinion of a member of the Garda, the person–

• has consumed an intoxicant,
• is committing or has committed an offence under the Road Traffic Acts 1961 to 2011,
• is or has been, with the vehicle, involved in a collision, or
• is or has been, with the vehicle, involved in an event in which death occurs or injury appears or is claimed to have been caused to a person of such nature as to require medical assistance for the person at the scene of the event or that the person be brought to a hospital for medical assistance.

The law as it currently stands says that a Garda ‘shall’ conduct a test of breath for alcohol in circumstances (a) and (d), and ‘may’ do so in circumstances (b) and (c). However, in the case of tests of oral fluid for drugs, the word ‘may’ is used for all circumstances. This means that a test for alcohol is required in circumstances (a) and (d), but a test for drugs is not.

The 2024 Act changes the rules for testing for drugs to match those for testing for alcohol. It means that, in circumstances (a) and (d) above, it will henceforth be required to conduct a drug test, as it already is for alcohol..

It is not a defence for a person charged with an offence to show that, in relation to the facts alleged to constitute the offence, an analysis or determination under this Part has not been carried out or that he or she has not been required to provide a specimen of his or her breath.

As a result of section 11 of this 2024 Act , there will be a new requirement under section 9 of the There is obligation  to provide a specimen of oral fluid, for preliminary drug testing, in certain circumstances. The 2023 Act adds  “or oral fluid” after “of his or her breath”, in order to take account of the new requirement.