ROAD TRAFFIC ACT 2010 Chapter 4 Section 15

pillphil

Reading up on DUI,


15.—(1) Where under this Chapter a designated doctor or designated
nurse has taken a specimen of blood from a person or has
been provided by the person with a specimen of his or her urine, the
doctor or nurse, as the case may be, shall divide the specimen into 2
parts, place each part in a container which he or she shall immediately
seal and complete the form prescribed for the purposes of this
section.
(2) Where a specimen of blood or urine of a person has been
divided into 2 parts under subsection (1), a member of the Garda
Síochána shall offer to the person one of the sealed containers and
inform the person that he or she may retain either of the containers.
(3) As soon as practicable after subsection (2) has been complied
with, a member of the Garda Síochána shall cause to be forwarded
to the Bureau the completed form referred to in subsection (1),
together with the relevant sealed container or, where the person has
declined to retain one of the sealed containers, both relevant sealed
containers.
(4) In a prosecution for an offence under this Chapter or under
section 4 or 5, it shall be presumed until the contrary is shown that
subsections (1) to (3) have been complied with.


How could you possibly show that sections (1) to (3) hadn't been complied with?

mcgarrett

If you have reason to suspect (1) wasn't complied with you could call the nurse or doctor as a witness.
For (3) the Gary Doyle order should have a copy of cert. of postage, that will tell you date of postage, when you have that date you can check if it was as soon as practicable.

pillphil

Section (2) is the one I'm really wondering about.
Is there any documentation to say the suspect was offered and accepted a sample, or was offered and refused a sample?
If the suspect wasn't offered a sample, I can't see any way to prove it. And according to section (4) it's accepted as having happened.

dermot_sheehan

The accused can give evidence that they were not offered the sample, and the district judge can decide on their credibility whether this rebuts the presumption.

Milk & Honey

A member of the public who has consumed alcohol v a sober Garda? Who wins? I would make money betting on the Garda every time at 100 to 1 on.

MagicSean

Milk & Honey wrote: »

A member of the public who has consumed alcohol v a sober Garda? Who wins? I would make money betting on the Garda every time at 100 to 1 on.

A Garda and a doctor.

Milk & Honey

MagicSean wrote: »

A Garda and a doctor.

The doctor is hardly ever in court for the trial!

MagicSean

Milk & Honey wrote: »

MagicSean wrote: »

A Garda and a doctor.

The doctor is hardly ever in court for the trial!

Yes because they are rarely needed. If the person were challenging what happened during the provision of the sample they probably would be.

hierro

Has there been any cases ever taken on the lack of an offer.

I'd believe that the doctors rare appearances are down to two reasons. Firstly the cost of the prosecution can always be laid on a person found guilty, although not sure its done and the doctors certificate and the medical bureau of road safety certificate back up the assumption that the sample was properly attained and sealed.

A slip used have to be given to the person indicating the offer was made.

I believe that there is one good challenge left in drink driving.

Milk & Honey

MagicSean wrote: »

Yes because they are rarely needed. If the person were challenging what happened during the provision of the sample they probably would be.

The prosecution would not necessarily know before the trial that the point would be made. The defendant would be going into evidence after the prosecution case has closed. The prosecution would have to seek an adjournment to call the doctor, who would probably not have a note of his own and may not be sure of what happened many months before. It is most unlikely that the prosecution would do that. It could backfire badly.

ResearchWill

hierro wrote: »

Has there been any cases ever taken on the lack of an offer.

I'd believe that the doctors rare appearances are down to two reasons. Firstly the cost of the prosecution can always be laid on a person found guilty, although not sure its done and the doctors certificate and the medical bureau of road safety certificate back up the assumption that the sample was properly attained and sealed.

A slip used have to be given to the person indicating the offer was made.

I believe that there is one good challenge left in drink driving.

MaCarron v Judge Groarke, Kelly J. 4th April 2000, there is only a counsel's note of the judgement, but in this case Garda gave evidence that he offered two samples and was refused and he gave the slip to indicate same. The Garda then sent both samples to MBRS. In court the accused produced the second sample. The HC overturned the conviction.

Marcusm

ResearchWill wrote: »

MaCarron v Judge Groarke, Kelly J. 4th April 2000, there is only a counsel's note of the judgement, but in this case Garda gave evidence that he offered two samples and was refused and he gave the slip to indicate same. The Garda then sent both samples to MBRS. In court the accused produced the second sample. The HC overturned the conviction.

And the Garda was prosecuted for perjury/attempting to pervert?

hierro

Marcusm wrote: »

And the Garda was prosecuted for perjury/attempting to pervert?

Hard to prove that lie.

Why not legislate for giving a sample to the defendant instead of an option. In my limited experience, the person either asks what they should do or simply states something along the lines of "sure what am I going to do with it. Send it off"

Victor

Marcusm wrote: »

And the Garda was prosecuted for perjury/attempting to pervert?

There is a difference between being mistaken / wrong and committing perjury.

Marcusm

Victor wrote: »

There is a difference between being mistaken / wrong and committing perjury.

I would agree absolutely with you on that; however, the procedures for dealing with physical evidence and blood samples are (or should be?) such that it is impossible for an AGS member to misrecollect what as happened with one of two blood samples taken from a person in custody or to misrecord the sequence of events such that he records a refusal to accept one of the samples in a case where it has been accepted. There is a simple cross check as if the sample has been accepted by the prisoner two would be sent to the lab.

An "error" such as this is likely to result in no conviction or an unsafe conviction. A simple clerical error could be reverified before the case. These safeguards should make it very difficult fr an AGS member to give evidence by mistake! Failure to follow procedure should at least be a disciplinary matter but providing testimony which he SHOULD know to be false borders on perjury or malfeasance.