Typo in drug-driving law invalidates power of arrest, says barrister

A typographical error in a major piece of road traffic legislation means gardaí do not have the power to arrest people in certain cases of drug-driving.

The error, which comprises a reference to section 11(6) of the Road Traffic Act 2016 being mistyped as section 11(5), was spotted by barrister David Staunton, the author of a legal book on drink-driving.

Although the error has sat on the statute books for four years, it was only noticed for the first time recently as Mr Staunton prepared a second edition of the book Drunken Driving, published by Round Hall.

The issue applies to situations where a garda asks a person to perform an impairment test at the roadside and the person refuses. Under section 11 of the 2010 Act (as amended by the 2016 Act) this person can then be arrested and brought to either a Garda station or a hospital where, according to the Act, they are required to provide a blood or urine sample.

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Arrest data

However, due to the typographical error in the Act, the garda’s power of arrest in such circumstances is invalid, meaning any evidence gleaned from the sample would also be invalid.

“They literally just forgot to amend a subsection,” Mr Staunton said.

Due to how garda arrest data is recorded, it is difficult to say how many cases the error might have affected since 2016 if it had been spotted by lawyers. Six barristers and solicitors with extensive experience in road traffic cases said they had never heard of the error being raised in court.

Mr Staunton said the number of affected cases is likely to be low as the issue only applies to impairment tests, which have largely been replaced by more sophisticated oral fluid tests in recent years. “But it still comes up from time to time,” said the barrister.

An impairment test involves a garda asking a motorist to perform a series of verbal or physical actions, such as touching their nose with their index finger, to assess if they are intoxicated.

Loophole

The issue would likely be easily fixed by way of a statutory amendment. The Department of Transport, which has responsibility for the legislation, did not respond to a request for comment.

Drink- and drug-driving arrests have increased significantly this year, despite the coronavirus lockdowns, due to the increased number of Garda checkpoints on the roads.

The 2016 error is the second time a typing error has created a loophole in intoxicated driving laws. In 2006, cabinet was forced to rush through amending legislation to fix an error which allowed drivers to avoid prosecution after refusing to give a breath sample at a checkpoint.

Similar to the mistake in the 2016 Act, the error arose during the amendment of the relevant legislation.