Summons: charged under old road traffic act

LisaMarieM

We received a summons in the mail, and it said that the person on it was being charged for driving a mechanically propelled vehicle while being under the influence of an intoxicant to such an extent as to be incapable of having proper control of the said vehicle.

Contrary to section 4(1) and (5) of the road traffic act 2010

---
So we looked up the road traffic act of 2010, which only talks about driving under the influence of alcohol. Yet, he was actually arrested as they suspected he was driving under the influence of cannabis.

If they don't mention 'as amended by section 8 of the road traffic act 2016', can they actually prosecute him for drug driving or only for drunk driving?

Peregrinus

Yes, they can, provided the amendment to s. 10 had entered into force before the date of the alleged offence. Section 10 of the Act as in force on that day created an offence based on driving under the influence of an intoxicant.

The irishstatutebook.ie website can be unhelpful, in that it sets out legislative instruments in the form in which they were orginally passed, and not in the form in which they are currently in force. But it's the form that is currently in force that has, well, the force of law.

Mr. Incognito

Go see a solicitor.

If the summons is not correct. You may have it struck out on a technicality.

huddlejonny

Do you mind me asking how long it took for the summons to be sent out?

LisaMarieM

huddlejonny wrote: »

Do you mind me asking how long it took for the summons to be sent out?

The 'offence' happened on July 23rd 2017 and the summons has a date of November 20th, but there is another issue with that - they kept on sending it to the wrong address and we only got it in April 2018 in the end

And re:Peregrinus, that's the problem a bit, the first solicitor we got said nothing in the district court, even though we had so many points we wanted him to bring up, he just stood there and said nothing. So now it's going to the appeals court and we went with another solicitor, but again he doesn't want to bring up some things and claims 'he's being charged under the old rules and not the 2016 road traffic act' and that different rules apply because of it (e.g.: they took a urine sample instead of a blood sample, didn't do an impairment test or tool a saliva test and he claims that according to the old rules they didn't have to take a blood sample and so on.) so we're looking into whether or not we should just get rid of this fella again if he's taking nonsense and quickly find ourselves another solicitor

whippet

LisaMarieM wrote: »

The 'offence' happened on July 23rd 2017 and the summons has a date of November 20th, but there is another issue with that - they kept on sending it to the wrong address and we only got it in April 2018 in the end

And re:Peregrinus, that's the problem a bit, the first solicitor we got said nothing in the district court, even though we had so many points we wanted him to bring up, he just stood there and said nothing. So now it's going to the appeals court and we went with another solicitor, but again he doesn't want to bring up some things and claims 'he's being charged under the old rules and not the 2016 road traffic act' and that different rules apply because of it (e.g.: they took a urine sample instead of a blood sample, didn't do an impairment test or tool a saliva test and he claims that according to the old rules they didn't have to take a blood sample and so on.) so we're looking into whether or not we should just get rid of this fella again if he's taking nonsense and quickly find ourselves another solicitor

you can go and look for another solicitor who will tell you what you want to hear - but i'd be more inclined in seeking a legal representative who would be honest with me.

anyway - legal advise can't be sought here so I don't think you'll get an answer to your question

Captain Obvious

Sounds like you misread the 2010 Act. Section 4(1) applies to intoxicants, not just alcohol, if I recall correctly.

Get Real

LisaMarieM wrote: »

......

Contrary to section 4(1) and (5) of the road traffic act 2010

---
So we looked up the road traffic act of 2010, which only talks about driving under the influence of alcohol.

Both those sections talk about being under the influence of an intoxicant.

"the influence of an intoxicant"

I'm not sure where you're getting it only covers alcohol.

Legal advice can't be given on interpretation of the rest etc so consult a solicitor. But the wording covers alcohol, drugs etc.

GM228

LisaMarieM wrote: »

We received a summons in the mail, and it said that the person on it was being charged for driving a mechanically propelled vehicle while being under the influence of an intoxicant to such an extent as to be incapable of having proper control of the said vehicle.

Contrary to section 4(1) and (5) of the road traffic act 2010

---
So we looked up the road traffic act of 2010, which only talks about driving under the influence of alcohol. Yet, he was actually arrested as they suspected he was driving under the influence of cannabis.

If they don't mention 'as amended by section 8 of the road traffic act 2016', can they actually prosecute him for drug driving or only for drunk driving?

You are charged under the primary Act, not the amending Act. When an Act is quoted by law it means the Act as amended in it's current form, not it's enacted form.

Also, S4 deals with an "intoxicant", not alcohol and it always has since enactment.

“intoxicant” includes alcohol and drugs and any combination of drugs or of drugs and alcohol

CharlieCroker

The legislation says a Garda "may" carry out a roadside impairment test/saliva swab. There's no requirement to do so in order to arrest.
They're tools to assist a Garda in forming their opinion.

Same as the roadside breath test for alcohol.

cobhguy28

Captain Obvious wrote: »

Sounds like you misread the 2010 Act. Section 4(1) applies to intoxicants, not just alcohol, if I recall correctly.

Yes 4(1) is impaired driving ( incapable of having proper control of the vehicle.)
and 5(1) is intended to drive while impaired ( incapable of having proper control of the vehicle.)

Both these charges are based on evidence of observations of a person or their driving. They are not based on results of a drink or drugs test.

Because of this they are hard to prove.

GM228

LisaMarieM wrote: »

The 'offence' happened on July 23rd 2017 and the summons has a date of November 20th, but there is another issue with that - they kept on sending it to the wrong address and we only got it in April 2018 in the end

And re:Peregrinus, that's the problem a bit, the first solicitor we got said nothing in the district court, even though we had so many points we wanted him to bring up, he just stood there and said nothing. So now it's going to the appeals court and we went with another solicitor, but again he doesn't want to bring up some things and claims 'he's being charged under the old rules and not the 2016 road traffic act' and that different rules apply because of it (e.g.: they took a urine sample instead of a blood sample, didn't do an impairment test or tool a saliva test and he claims that according to the old rules they didn't have to take a blood sample and so on.) so we're looking into whether or not we should just get rid of this fella again if he's taking nonsense and quickly find ourselves another solicitor

The time you received the summons is not an issue, plenty of summons issued correctly first time can be delivered at an even later date.

There is no requirement to do an impairment test, it is optional, also there is no requirement to do a blood over a urine test, either or both can be done.

There's a reason why two solicitors have not raised your concerns.

4ensic15

A summons is merely a device to get a person into court. Once it sets out the details of the offence it is sufficient. Once the evidence is led regarding an offence and you fail to rebut it, you are guilty. The offence of drug driving under Section 4(1) was not abolished. Some new offences were added to Section 4.

evolving_doors

LisaMarieM wrote: »

We received a summons in the mail, and it said that the person on it was being charged for driving a mechanically propelled vehicle while being under the influence of an intoxicant to such an extent as to be incapable of having proper control of the said vehicle.

Contrary to section 4(1) and (5) of the road traffic act 2010

---
So we looked up the road traffic act of 2010, which only talks about driving under the influence of alcohol. Yet, he was actually arrested as they suspected he was driving under the influence of cannabis.

If they don't mention 'as amended by section 8 of the road traffic act 2016', can they actually prosecute him for drug driving or only for drunk driving?

Any samples taken?
If not then the driver could have just been under the influence of tiredness. Which wouldn't come under the above act.
Unless the driver admitted they were under the influence of something intoxicating.

Maybe!?

cobhguy28

LisaMarieM wrote: »

to the old rules they didn't have to take a blood sample and so on.) so we're looking into whether or not we should just get rid of this fella again if he's taking nonsense and quickly find ourselves another solicitor

The revised act did not edit the old act. it just added new sections. So S4.1 and S5.1 charges are based on evidence of observations of a person or their driving by a garda nothing else.

GM228

cobhguy28 wrote: »

The revised act did not edit the old act. it just added new sections. So S4.1 and S5.1 charges are based on evidence of observations of a person or their driving by a garda nothing else.

Blood or urine tests are also taken as evidence, and from the OP it seems a urine test was indeed taken.

A Guard will not take such a case without a blood or urine test as the state can not otherwise prove there was an intoxicant in the system.

There are two elements to the charge which the state has to prove:-

(a) there was an intoxicant, evidence is a urine or blood test and,

(b) that the driver was incapable of having proper control of the vehicle, evidence is the Guards observation of the driver and their driving and this can be backed up by the impairment test.

Duffryman

As an aside here....just wondering...not 'asking for a friend' or anything!

Take the example of a drink driving case, and a blood test. The Act says:
A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his or her body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his or her blood will exceed a concentration of—

(a) 50 milligrammes of alcohol per 100 millilitres of blood, or

(b) in case the person is a specified person, 20 milligrammes of alcohol per 100 millilitres of blood.

You're not a specified person, so the 50 limit applies. A blood test is taken say one hour after you're stopped, and returns a reading just barely over the limit - say 51 or 52.

Seems reasonable to speculate that if the blood test hadn't been taken for another hour or more, some alcohol may have gone out of the system, and the reading may have dropped to maybe 48 or 49 - therefore no offence.

So, in a marginal case of maybe having one pint, it would seem to be in the driver's interest to delay the blood test as long as possible. Is he or she entitled to say 'I'll give a sample all right, but not for another hour or two'? Or might that be viewed as refusing to give a sample when asked to do so, which of course is an offence in itself?

Has this ever come up in a hearing anywhere, does anybody know?

Under His Eye

It would be very difficult to delay the blood test. Once the doctor arrives the sample would be taken without further delay. The sample must be taken within 3 hours of being stopped.

In olden times, the way to delay was to escape the scene in an ambulance. This loophole has long been closed.

Duffryman

Would seem to be a bit of a lottery element in such marginal cases, then.

Doctor is close by and gets there a few minutes after receiving the call - reading of 52. Driver convicted, fined, and banned.

Doctor a few miles away in the middle of the night, takes time to get up, freshen up, get dressed, maybe have coffee before going to Station - reading of 49. No offence. Driver goes scot free.

Probably happens in only very, very few cases...if at all...but still seems a bit odd, all the same.

evolving_doors

Can you get the results of the urine sample?

Peregrinus

Duffryman wrote: »

Would seem to be a bit of a lottery element in such marginal cases, then.

Doctor is close by and gets there a few minutes after receiving the call - reading of 52. Driver convicted, fined, and banned.

Doctor a few miles away in the middle of the night, takes time to get up, freshen up, get dressed, maybe have coffee before going to Station - reading of 49. No offence. Driver goes scot free.

Probably happens in only very, very few cases...if at all...but still seems a bit odd, all the same.

What's odd about it? To get a conviction, they need to take a sample within three hours of driving, and the earlier they can take the sample the better their chances of getting one which will support a conviction. But practical factors that they can't control mean that some samples will be taken later than others, and if that happens in a marginal case they may not get evidence that will support a conviction. Tough, but them's the breaks. It;'s generally true for criminal investigations that in some case you find the evidence you need quite easily, and in others you fail to find it.

Peregrinus

evolving_doors wrote: »

Can you get the results of the urine sample?

They in fact take two samples, and you can get one of them tested yourself if you wish. And, either way, if they prosecute you you will be told what the result of th test they do is, because that's part of the prosecution case.

If they don't prosecute you, you never find out how close you came to being over the limit.

Duffryman

Peregrinus wrote: »

What's odd about it? .

I think you answer your own question about what's odd about it.

In both cases, the person would have had exactly the same amount to drink, done exactly the same amount of driving, been stopped at exactly the same time, and would have arrived at the Garda Station at exactly the same time.

But then whether or not there would be evidence sufficient for a conviction could come down to something as arbitrary as how long a doctor took to get there after receiving a call.

I say odd. You say them's the breaks.

Tomayto, Tomato.

Peregrinus

Duffryman wrote: »

I think you answer your own question about what's odd about it.

In both cases, the person would have had exactly the same amount to drink, done exactly the same amount of driving, been stopped at exactly the same time, and would have arrived at the Garda Station at exactly the same time.

But then whether or not there would be evidence sufficient for a conviction could come down to something as arbitrary as how long a doctor took to get there after receiving a call.

I say odd. You say them's the breaks.

Tomayto, Tomato.

"Odd" to me suggests unexpected, surprising, not a state of affairs that you would think likely.

In that sense, this isn't odd. It's the opposite of odd; it's normal.

4ensic15

In some cases, the alcohol level in the blood rises after the drinking stops. This happens when a person has consumed a substantial meal shortly before the drinking. There are American states which allow evidence that at the actual time of driving the person was not over the limit and charts and expert evidence is introduced in evidence of this. Like everthing in Road Traffic 2 people can drive and commit the same offence. One does not get caught and the other does. One leaves the pub, turns left into a checkpoint 100m later. the other turns right and gets home untroubled. Both drive around with a mobile phone to their ear. One is seen and caught, the other is not. people can be lucky and unlucky. Tough if you are caught.

Duffryman

Tomayto ðŸ˜