Drink driving legislation most challenged criminal law

‘It’s like the Grand National. There are dozens of hurdles. Hit any and the case can fall’

Drivers use a range of challenges to get their drink-driving cases struck out. File photograph: Philip Toscano/PA Wire

Drivers use a range of challenges to get their drink-driving cases struck out. File photograph: Philip Toscano/PA Wire


Drink-driving legislation is the most challenged piece of criminal law on our statute books, according to solicitors.

With so much at stake, including driving bans of two or three years, defendants and their solicitors regularly challenge even the most arcane of legal points.

Statistics show they have an impressive success rate: out of 20,000 drink-driving cases before the Irish courts since January 2013, just 6,709 have resulted in convictions.

“It’s like the Grand National,” says Evan O’Dwyer of O’Dwyer Solicitors, who specialises in road traffic law. “There are dozens of hurdles. If the case hits any of them, it can fall.”

The most common grounds for cases being dismissed involve paperwork errors, discrepancies in evidence or procedural points, according to gardaí and solicitors. Other issues, such as the availability of gardaí involved in an arrest or charge, can also have a crucial bearing on a case.

Breathalyser test

Challenges on the basis of the flawed use of breathalyser equipment is one of the most common grounds of legal challenge, according to solicitors. If the machine is not operated using the correct sequence of steps, the result itself is legally vulnerable.

The mandatory provision of breathalyser results in both English and Irish is just the latest tactic used in challenging cases.

In September, the High Court ruled that Mihai Avadenei (29) should have been provided with test results in both languages, as stipulated in legislation. Many similar cases are being adjourned or struck out on the same grounds, depending on the sitting judge.

Three-hour limit

Gardaí and solicitors report unforeseen delays in many cases, such as traffic or gardaí being called to another incident. “It’s often a race against time, especially in accidents,” said one legal source.

In those cases where urine or blood tests are required, there is an even greater chance of delay because a doctor is required to take these samples at the local Garda station.

Involvement of doctors

The involvement of a doctor, however, also provides another series of potential legal vulnerabilities, such as incomplete paperwork or flaws in the oral evidence.

Gardaí not present

This, according to gardaí and solicitors, is one of the most common reasons for cases failing.

Many gardaí say privately that resources and manpower are issues. Similarly, the relocation or transfer of gardaí can impact on a case, as well as illness or injury.

Three gardaí are involved in drink-driving cases: an arresting garda, the member in charge in the Garda station, and the garda performing the breath test.

Discrepancies in oral evidence

“If there is an error, there’s a row over how important it is to the case,” said one observer. “There’s a big emphasis placed on oral evidences.”

Infringement of rights

Any omission of any of these stages can be enough for the courts to take a view that a person’s rights have been infringed. The result is often a dismissal, say solicitors.

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