New legislation will be required to provide for random breath testing, writes Conor Lally
The announcement by Taoiseach Bertie Ahern that random breath-testing is constitutional brings clarity to a legal ambiguity which has allowed drink-driving, and the resultant road deaths, to continue unabated.
Mr Ahern sought the advice of Attorney General Rory Brady on the widely held view that random breath testing would be in breach of the guarantee to "bodily integrity" enshrined in the Constitution.
Gardaí have always believed if they requested a breath, urine or blood sample from a motorist, without being very sure the individual had been drinking to excess, that person's constitutional right to "bodily integrity" would have been breached.
Urine and blood samples can be requested at a Garda station after a motorist has been arrested and brought there following a breath reading of more than 80mg of alcohol per 100mls of blood.Even in cases where gardaí believed they had "due cause" to carry out a breath test, and a driver was subsequently found to be over the legal limit, many prosecutions have been challenged and have failed as a result.
The definition of "due cause" has in itself proven ambiguous. Experienced barristers have had little difficulty in exploiting this in court and ensuring their client escaped conviction.
But now that the Attorney General has informed the Taoiseach there are no constitutional difficulties, the way is clear for the introduction of a watertight system. However, random testing cannot be introduced immediately. There is still not provision for it under Irish law. New legislation must now be introduced to provide for it, which will take at least 12 months to be enacted.
There are two avenues open to the Government in this regard. Firstly, they could seek to introduce an amendment to the existing Road Traffic Act by simply adding a provision for random testing.
Secondly, they could redraft all of the existing legislative provisions relating to drink-driving, adding provisions for random breath testing, and bringing forward entirely new legislation.
The motoring group AA Ireland has expressed a preference for the latter option. Its spokesman Conor Faughnan believes the drafting of new legislation would close a number of loopholes which are being exploited daily in the courts, resulting in as many as 50 per cent of those charged with drink driving escaping prosecution.
Mr Faughnan said new legislation could close many existing loopholes such as: