Breathalysing Minors

axer

Hi,

I have 2 questions from a thread over in After Hours (I know).

1. Can a garda breathalyse a minor without a parents consent?
2. If a garda finds a reading of alcohol having being consumed could they do anything about it? i.e. is it an offence even if they did not see the kid drinking the alcohol and the kid is not drunk.

Thanks for any answers.

Turner

A garda can ask the minor to blow into the breathalyser. There is no problem with that.

He/She cannot make the minor do it and there is no penalty if the minor refuses.

If the minor was driving a car there are penalties for refusing alright.

If a child is under 18 the child must be arrested and handed over to a parent or somebody responsible over the age of 18. (Brother/Aunt/Friend etc)

johnnyskeleton

I will not read the other thread, because sometimes people use that as a backdoor to seeking advice as opposed to pure hypothetical situations...

1. In relation to the hand held testers, as Chief says, a Garda could ask, but a person is not required to comply with the request unless they are driving/in control of a mechanically propelled vehicle.

If a minor is arrested and brought to a garda station, the member in charge is required to make reasonable efforts to inform the parents and seek the attendance of a responsible adult before commencing an interview. It is arguable that they should take the same steps if they wished to breathalyse a minor while in custody, although in circumstances where the gardai usually want to breathalyse as soon as possible after the 20 minute observation period, the parent/other responsible adult may not arrive in time. Each situation is different and turns on its own facts.

2. There is no offence of having alcohol in your breath/blood by itself. There are offences such being intoxicated to such an extent as would give rise to a reasonable apprehension that he might endanger himself or any other person in a public place, however, a breathalyser would not be of much use in a prosecution for that. There are also offences of purchasing or consuming alcohol in a public place if you are a minor, but in such a situation it is the act of purchasing/consuming and not the fact that you have consumed the alcohol that is the offence. Because gardai can give evidence that a person appeared intoxicated where it is appropriate, the breathalysers are only really used for drink driving offences.

Turner

Would any child under the age of 18 under the influence of alcohol in a public place not be considered to be in danger ??

I think so.

Eg 11yr old girl having consumed 3 cans of beer walking around alone at 4am. She might not be intoxicated to such an extent that she is falling around in front of traffic or on the ground unconscious.

But in my opinion due to her age and her vulnerability I would consider her in danger.


Another Scenario: Gardai find a group of teenagers drinking. One girl is 15, has had 3 cans of beer. The Garda makes the decision that she is not intoxicated to constitute a danger to herself. She loses her friends and decides to walk home alone and gets sexually assaulted.

Did the Gardai breach their duty of care by not arresting a child that was under the influence of alcohol and releasing her into the custidy of a parent or responsible adult?

Its my opinion that the Gardai should have acted and arrested her.

Mind you when Gardai do make arrests and take children home they normally receive abuse off the parents for interfering. And shouldnt you be out catching drug dealers and rapists comments. Generally the kids make it back to the place they were drinking with their friends before the gardai!

cast_iron

Chief--- wrote:

Eg 11yr old girl having consumed 3 cans of beer walking around alone at 4am. She might not be intoxicated to such an extent that she is falling around in front of traffic or on the ground unconscious.

But in my opinion due to her age and her vulnerability I would consider her in danger.

Indeed. I don't think there is a Garda in the country that would leave an 11yo drink girl to fend for herself at 4am.
I'm not sure an arrest would be necessary. Often, the Gardai would actually bring the person home themselves.

Chief--- wrote:

Another Scenario: Gardai find a group of teenagers drinking. One girl is 15, has had 3 cans of beer. The Garda makes the decision that she is not intoxicated to constitute a danger to herself. She loses her friends and decides to walk home alone and gets sexually assaulted.

Did the Gardai breach their duty of care by not arresting a child that was under the influence of alcohol and releasing her into the custidy of a parent or responsible adult?

Its my opinion that the Gardai should have acted and arrested her.

Again, an arrest may not be necessary, but some action may well be required under duty of care. It would be fair enough if it was 3pm on a Sunday afternoon, but maybe not late on a Friday night.

johnnyskeleton

Chief--- wrote:

Would any child under the age of 18 under the influence of alcohol in a public place not be considered to be in danger ??

I think so.

Eg 11yr old girl having consumed 3 cans of beer walking around alone at 4am. She might not be intoxicated to such an extent that she is falling around in front of traffic or on the ground unconscious.

But in my opinion due to her age and her vulnerability I would consider her in danger.

The offence is not being in danger, but of being so drunk as to be a danger to him/herself or to another person. The same is true if an adult was falling around in front of traffic etc. It is not an offence simply to be drunk, there must be an additional criminal element to a person's behaviour. While you do have a point, I would respectfully suggest that it is OT in regard to the OP's question. Without the additional element of being in control of an MPV or being a danger to himself/others, I believe there is no offence.

Another Scenario: Gardai find a group of teenagers drinking. One girl is 15, has had 3 cans of beer. The Garda makes the decision that she is not intoxicated to constitute a danger to herself. She loses her friends and decides to walk home alone and gets sexually assaulted.

The gardai should protect her by robustly and vigourously prosecuting sex offenders. The kind of protective internment that an arrest by the above garda would entail is contrary to our constitution and to our criminal justice system. It might work in the US though.

Did the Gardai breach their duty of care by not arresting a child that was under the influence of alcohol and releasing her into the custidy of a parent or responsible adult?

I think the cases against the South Yorkshire Constabulary (I think white, alcock, frost etc were the plaintiffs) might be of some assistance here. While it is only a dim memory in my mind, I vaguely recall that in that case (concerning the police duty of care in the Hillsborough disaster) the question of the duty/standard of care owed by the police is considered.

Its my opinion that the Gardai should have acted and arrested her.

I disagree. While the Gardai can (and should as cast_iron argues) bring her home or offer to otherwise assist her, they should not arrest her unless they have a valid power of arrest. Again, a person cannot be arrested "for their own good".

Mind you when Gardai do make arrests and take children home they normally receive abuse off the parents for interfering. And shouldnt you be out catching drug dealers and rapists comments. Generally the kids make it back to the place they were drinking with their friends before the gardai!

People are strange.

Turner

johnnyskeleton wrote:

The gardai should protect her by robustly and vigourously prosecuting sex offenders. The kind of protective internment that an arrest by the above garda would entail is contrary to our constitution and to our criminal justice system. It might work in the US though.

It might be contrary to our constitution but the only consequences of such an arrest would be a Juvenile Liasion Officers caution in the presence of the childs parents. Hardly grounds for taking a case to the Supreme Court.

johnnyskeleton wrote:

I think the cases against the South Yorkshire Constabulary (I think white, alcock, frost etc were the plaintiffs) might be of some assistance here. While it is only a dim memory in my mind, I vaguely recall that in that case (concerning the police duty of care in the Hillsborough disaster) the question of the duty/standard of care owed by the police is considered.

You would be very surprised what makes it to the High Court with regard to Gardai breaching their duty of care.
Scenario: Gardai engage in a pursuit of a bank robber. Robber crashes and is disabled. Takes a case against the minister for justice that the gardai breached their duty of care in pursuing him causing him to crash!!

johnnyskeleton wrote:

Again, a person cannot be arrested "for their own good".

If they are intoxicated and pose a danger to themselves or others, they can.

johnnyskeleton

Chief--- wrote:

It might be contrary to our constitution but the only consequences of such an arrest would be a Juvenile Liasion Officers caution in the presence of the childs parents. Hardly grounds for taking a case to the Supreme Court.

I belive you are taking my words askew here. If I may use the vernacular of the mods, you would be very surprised what makes it to the Court of Criminal Appeal.

You would be very surprised what makes it to the High Court with regard to Gardai breaching their duty of care.
Scenario: Gardai engage in a pursuit of a bank robber. Robber crashes and is disabled. Takes a case against the minister for justice that the gardai breached their duty of care in pursuing him causing him to crash!!

Go on...you asked whether a garda owed a duty of care to a young person who drinks alcohol...

If they are intoxicated and pose a danger to themselves or others, they can.

At the risk of being banned from this forum, I must ask you did you read my thread? Because I argued that the element of being a danger to themselves is the sine qua non of the offence.

I must ask you do you agree with what I have said or do you disagree?