Drink Driving

Sully

Following on from a conversation on the Waterford City Forum... what is the exact law regarding drink driving?

I ask because one of the posters was arrested (a few years ago I think) for drink driving. He was found sleeping in his van, while having the ignition in and turned to heat the van. He was cleared when the test came back he was just under the limit, and went back to sleep in the back of the van.

What is the exact position? If your drunk and found in your car, but do not have the keys in the igntion: Can you be charged with drink driving, if found over the limit?

If your drunk and walking down the street with the keys in your hand, are there any charges they can bring against you?

Also, in a slightly different topic, but can the guards fine someone for any of the small driving laws (no seatbelt, no full licenced driver, no backlight) on private property? Like, if I was on my driveway with no seatbelt - could I be charged, even though its private property? Or if i was in a college car park, can such a fine be imposed?

Minor stuff, but has me puzzled. Iv heard the usual stories they cant if its private property but I assume its the myth like the guard must wear his hat (I love that one) else there is no case.

johnnyskeleton

Drink driving is to drive or attempt to drive a mechanically propelled vehicle in a public place while:
(1) under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle
(2) having a blood alcohol content of 80 milligrammes of alcohol per 100 millilitres of blood
(3) having a urine alcohol content of 107 milligrammes of alcohol per 100 millilitres of urine
(4) having a breath alcohol content of 35 microgrammes of alcohol per 100 millilitres of breath

Being drunk in charge is pretty much the same, except instead of driving or attempting to drive, you are in charge of a mechanically propelled vehicle in a public place with intent to drive or attempt to drive the vehicle (but not driving or attempting to drive it) while:
(1) under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle
(2) having a blood alcohol content of 80 milligrammes of alcohol per 100 millilitres of blood
(3) having a urine alcohol content of 107 milligrammes of alcohol per 100 millilitres of urine
(4) having a breath alcohol content of 35 microgrammes of alcohol per 100 millilitres of breath


Proving attempt to drive is quite difficult, you would have to show that the person was just about to drive the car, i.e. seat belt on, keys in ignition, mirror adjusted etc. Note that while the statutory definition of driving is quite vague, the courts will usually take a common sense attitude to what to drive means.

Being in charge is more about to get into the car, but it is always with intent to drive. If the gardai can't prove that you intended to drive (i.e. if their only evidence was that you were sleeping in the back seat and you didn't have your keys on you) then you can't be convicted.

Sully wrote:

If your drunk and walking down the street with the keys in your hand, are there any charges they can bring against you?

Intoxicated in a public place, s4 PO.

Sully wrote:

Also, in a slightly different topic, but can the guards fine someone for any of the small driving laws (no seatbelt, no full licenced driver, no backlight) on private property? Like, if I was on my driveway with no seatbelt - could I be charged, even though its private property? Or if i was in a college car park, can such a fine be imposed?

It depends on the specific offence, but the majority of road traffic offences must take place in a public place. You own driveway is not a public place, but a college car park might be. It is, as you might expect, up to the prosecution to prove that element of the offence, so if they can't prove that somewhere was a public place then the offence is not made out. A public place is a public road or anyother place that the public have access to as of right or by permission (e.g. paid car park).

cast_iron

Sully wrote: »

What is the exact position? If your drunk and found in your car, but do not have the keys in the igntion: Can you be charged with drink driving, if found over the limit?

From the RTA:

(2) A person who, when in charge of a mechanically propelled vehicle which is in a public, place with intent to drive or attempt to drive the vehicle, but not driving or attempting to drive the vehicle, is unfit to drive the vehicle shall be guilty of an offence.


The following:

(4) In a prosecution for an offence under this section, it shall be presumed, until the defendant shows—
( a ) that at the material time the circumstances were such that there was no likelihood of his driving the mechanically propelled vehicle so long as he remained unfit to drive, and.
( b ) that between his becoming unfit to drive and the material time he had not driven the mechanically propelled vehicle in a public place,
that he intended to drive or attempt to drive the mechanically propelled vehicle.

leaves some leeway, but ultimately, it's up to the judge to decide whether or not intent was present.

If your drunk and walking down the street with the keys in your hand, are there any charges they can bring against you?

No. See above. You must be "in charge" of the vehicle.

Sully wrote: »

Also, in a slightly different topic, but can the guards fine someone for any of the small driving laws (no seatbelt, no full licenced driver, no backlight) on private property? Like, if I was on my driveway with no seatbelt - could I be charged, even though its private property?

No. From the above quote, it must be a "public place" to be considered an offence.

Sully wrote: »

...like the guard must wear his hat (I love that one) else there is no case.

Indeed, it is a myth.

AckwelFoley

one of the posters was arrested (a few years ago I think) for drink driving. He was found sleeping in his van, while having the ignition in and turned to heat the van. He was cleared when the test came back he was just under the limit, and went back to sleep in the back of the van.

What is the exact position? If your drunk and found in your car, but do not have the keys in the igntion

You mean me Sully, dont you?

To this day im unsure how i passed after all the drink i had in me, but to be fair to the cops, the engiine was on and really the line has to be drawn somewhere.

But, anymore i bring a duvet and some pillows and get into the back of the van where there is a cage between me and the drivers cockpit.

johnnyskeleton

cast_iron wrote: »

The following:

(4) In a prosecution for an offence under this section, it shall be presumed, until the defendant shows—
( a ) that at the material time the circumstances were such that there was no likelihood of his driving the mechanically propelled vehicle so long as he remained unfit to drive, and.
( b ) that between his becoming unfit to drive and the material time he had not driven the mechanically propelled vehicle in a public place,
that he intended to drive or attempt to drive the mechanically propelled vehicle.

Now reads:
(8) In a prosecution for an offence under this section it shall be presumed that the defendant intended to drive or attempt to drive the vehicle concerned until he shows the contrary.

The presumption is still difficult because there still has to be some element of control, so even though it is presumed that the defendant intended to drive or attempt to drive, the prosecution still have to present, in my view, the type of case that is capable of inferring such an intent. Otherwise it becomes a bit illogical.

Victor

In the RTA there is a quite broad definition of driving - that includes being parked.

johnnyskeleton

Victor wrote: »

In the RTA there is a quite broad definition of driving - that includes being parked.

It "includes managing and controlling", but this arguably renders s.50 redundant because being in control is therefore part of driving. The logical distinction has to be therefore controlling as in being in charge of it's movements, for driving, and in charge, which means in possession of the vehicle, but again this sits a bit uneasy.

I would suggest that parking, i.e. managing the car into a space, is driving, and being stopped in traffic is controlling the vehicle, but sitting in the car which is parked (in, for example a parking space) is not driving as such, so it would have to be shown that a person was in charge intending to drive.

IncredibleHulk

the myth like the guard must wear his hat

That definitely a myth? Also, I remember being told there was a time a garda could not arrest if not in uniform. This referred to the old days, probably a myth too

dermot_sheehan

A Garda when not in uniform has to identify himself with his warrant card before exercising any of the powers of a garda under the road traffic act:
http://www.irishstatutebook.ie/1961/en/act/pub/0024/sec0111.html#zza24y1961s111

that's where i believe this urban legend arose from,

similarly for arrest under s. 30 of the Offences against the state act there's a requirment to show an ID card when a garda is not in uniform. The most common power of arrest would be under s. 4 of the Criminal Law Act 1997, there is no requirment to be in uniform or show identity as technically any citizen can arrest under s. 4 (where an offence is punishable by more then 5 years and it is believed the offender will avoid arrest by members of the gardai)

IncredibleHulk

that's where i believe this urban legend arose from,

Probably, thanks for that.

johnnyskeleton

IncredibleHulk wrote: »

That definitely a myth? Also, I remember being told there was a time a garda could not arrest if not in uniform. This referred to the old days, probably a myth too

More generally, a garda can give evidence of what he observed, for the purpose of making a complaint, even if at the time he was wearing a pink bunny suit.

Sully

gabhain7 wrote: »

A Garda when not in uniform has to identify himself with his warrant card before exercising any of the powers of a garda under the road traffic act:
http://www.irishstatutebook.ie/1961/en/act/pub/0024/sec0111.html#zza24y1961s111

that's where i believe this urban legend arose from,

similarly for arrest under s. 30 of the Offences against the state act there's a requirment to show an ID card when a garda is not in uniform. The most common power of arrest would be under s. 4 of the Criminal Law Act 1997, there is no requirment to be in uniform or show identity as technically any citizen can arrest under s. 4 (where an offence is punishable by more then 5 years and it is believed the offender will avoid arrest by members of the gardai)

Ah yes, but what defines "unifrom". If he was wearing the whole garda uniform with no hat - I doubt he has to produce ID? If an officer never produces ID, and you refuse to co-operate, that can lead into some serious trouble for the offender (not the guard) id imagine?

johnnyskeleton wrote: »

I would suggest that parking, i.e. managing the car into a space, is driving, and being stopped in traffic is controlling the vehicle, but sitting in the car which is parked (in, for example a parking space) is not driving as such, so it would have to be shown that a person was in charge intending to drive.

If you were sitting in the car, stationery - could that not be considered "management". I would imagine it would be if the keys were in the car, or the car was started but in netural. If not, imagine how hard it would be to prove he was attempting to drive the car? The offender could simply say "I was parked, had the engine on simply to heat the car while I slept as I did not want to drive home due to being over the limit".

johnnyskeleton

Sully wrote: »

If you were sitting in the car, stationery - could that not be considered "management". I would imagine it would be if the keys were in the car, or the car was started but in netural. If not, imagine how hard it would be to prove he was attempting to drive the car? The offender could simply say "I was parked, had the engine on simply to heat the car while I slept as I did not want to drive home due to being over the limit".

Well the keys in the ignition are a big thing, but think about how unfair it would be to convict someone of drink driving if they genuinely were in the car to sleep it off. It would also be against the grain of criminal law generally, because if I am planning to rob a bank, for example, I am not criminally liable until I reach the step just before committing the offence. So there has to be some leeway for someone who goes up to their car when drunk with the possibility of driving on their minds, but when they get into the car they realise it's a stupid idea to drive.

Armin_Tamzarian

gabhain7 wrote: »

The most common power of arrest would be under s. 4 of the Criminal Law Act 1997, there is no requirment to be in uniform or show identity as technically any citizen can arrest under s. 4 (where an offence is punishable by more then 5 years and it is believed the offender will avoid arrest by members of the gardai)

How do shop security guards fit in with this legislation.
If someone is caught stealing a tennis ball for example.
Presuming this offence isn't punishable by more than 5 years could the persons detention by the security guard be viewed as unlawful detention.
Is the security guard in effect breaking the law or is there some other legislation that applies here?

Rhonda9000

Armin_Tamzarian wrote: »

How do shop security guards fit in with this legislation.

Not covered, not Gardai.

Armin_Tamzarian wrote: »

If someone is caught stealing a tennis ball for example.
Presuming this offence isn't punishable by more than 5 years could the persons detention by the security guard be viewed as unlawful detention.
Is the security guard in effect breaking the law or is there some other legislation that applies here?

Citizens arrest.

Armin_Tamzarian

But did a previous poster not state that a citizen's arrest can only be made if the crime being commited is punishable by over 5 years imprisonment?

johnnyskeleton

Armin_Tamzarian wrote: »

But did a previous poster not state that a citizen's arrest can only be made if the crime being commited is punishable by over 5 years imprisonment?

Theft has a maximum penalty of 10 years imprisonment. Even though someone might be highly unlikely to get 5 years or more imprisonment if they were arrested for stealing tennis balls, it is the maximum penalty for the offence, not the likely sentence which determines whether an offence is "an arrestable offence".

But a citizen's arrest is not available for a minor offence such as unrenewed dog licence etc.

Armin_Tamzarian

Thanks for clearing that up.
I was presuming such a charge couldn't receive a sentence of greater than 2 years as it would be prosecuted in a district court.
I see what you mean though.

Sully

johnnyskeleton wrote: »

Theft has a maximum penalty of 10 years imprisonment. Even though someone might be highly unlikely to get 5 years or more imprisonment if they were arrested for stealing tennis balls, it is the maximum penalty for the offence, not the likely sentence which determines whether an offence is "an arrestable offence".

But a citizen's arrest is not available for a minor offence such as unrenewed dog licence etc.

Thats interesting.. what would the max jail term for vandalism be? I remember reading a new article about kids throwing eggs at a house and the citizens arrest was considered unlawful.

dermot_sheehan

Section 2 Criminal Damage Act 1991

max penalty is 10 years

Sully

gabhain7 wrote: »

Section 2 Criminal Damage Act 1991

max penalty is 10 years

Strange then. I thought it was an Irish article I read, where the guards informed the person they could be charged for holding them against their will..