HAS ANYTHING CHANGED from 2022?
No.
As of this writing, the drink driving limits for Ireland in 2023 have not changed from 2022. This is what they are:
Blood.
Between 51-80: 6 months.
Between 81-100: 1 year.
Between 101-150: 2 years.
Above 150: 3 years.
Urine.
Between 68-107: 6 months.
Between 108-135: 1 year.
Between 136-200: 2 years.
Above 200: 3 years.
Breath.
Between 23-35: 6 months.
Between 36-44: 1 year.
Between 45-66: 2 years.
Above 66: 3 years.
The limits are different depending on whether you give a blood, urine or breath specimen. The interesting thing when it comes to providing breath, blood or urine is that the ways this should be done are governed by law.
Since you are being required to give the State a specimen from your body, the law sets out how this requirement should be made. And the law is strict here.
Do you get a choice? Can you choose which specimen you want to give?
Not really.
If you’re arrested and brought to the Garda station, you may be required to provide a breath specimen. The machine used (the Evidenzer IRL) is usually located in a specific room in the Garda station. Provided that it’s working properly, and you have no medical issues that is the specimen you will have to give.
In other words, you cannot insist on giving a blood or urine specimen if the Evidenzer machine is working and you’re in good health.
The CCTV was played in court.
It showed that nobody
was observing the arrested person.
The drink driving case was thrown out of court.
What does it look like?
It is a rectangular machine that looks a little like a large office photocopier. There is a keypad on it and this keypad is used to type your name and address.
A tube connects to it and a fresh mouthpiece is attached to the end of the tube every time it’s used. Checks (e.g., ambient temperature) are conducted beforehand to make sure that no internal faults are showing up. The Garda will then tell you how you should provide the breath specimens.
Before you give a specimen of your breath (you must provide 2 separate specimens) the Gardai must observe you for 20 minutes. During this time, you cannot eat, drink or smoke anything i.e., “nil-by-mouth”.
This is to make sure that any potential excess alcohol that may be still in your mouth will clear before you give your specimens of breath. It’s also to prevent any possible contamination of the specimen that you give.
The Gardai must make sure that this 20-minute period is enforced and that you consume nothing before giving your breath specimens.
The reason that they must do this is because the law requires it i.e., the law requires that you are observed for 20 minutes.
I SPOKE TO A COLLEAGUE recently whose client had been arrested for drink driving. The Defence sought CCTV from inside the Garda station.
During the trial the Garda stated that the arrested man had been observed for the mandatory 20 minutes. The CCTV was played in court. It conclusively showed that, contrary to the evidence, nobody was observing the arrested person.
The drink driving case was thrown out of court.
This was because the law had been breached by the State.
Back to the law.
Sometimes the Evidenzer machine is not working. In that case a doctor or nurse will be called to the Garda station to take a blood or urine specimen from you.
Here you do have an option as to which specimen to provide. Again, the law here is important. The law requires you to allow the doctor to take a specimen of your blood. However, you have the option of providing a urine specimen for the doctor instead.
This is a sensible compromise for people who may be afraid of needles.
The Garda will tell you -in the presence of the doctor- that you must permit the doctor to take a specimen of your blood, or at your option, you can provide a specimen of your urine.
Again, this is a legal requirement. The law primarily requires blood, but you may opt to provide urine. This seems pretty straightforward.
What would happen if the Garda mixed that requirement up?
What would happen if they told you that you were required to provide a specimen of urine or blood, instead of blood or at your option, urine?
Is there really much of a difference? I mean, you have to provide one or the other anyway so what does it matter if he asks you to provide urine or blood instead of blood, or at your option, urine?
It matters to the law.
The law states clearly that the primary requirement is for blood, the option is for urine. The primary requirement is not urine with the option of blood. Cases have collapsed because of errors in the demand made here.
The High Court have been clear on this type of thing before. You may feel that this is a mere technicality. You might feel that insisting on the correct order in which the requirement is made is unnecessarily fussy.
After all the essence of the demand hasn’t changed. You have to provide blood or urine. Why should a case fall because of a mix up in how the requirement is explained to you? What disadvantage do you really suffer?
The High Court sees this differently. To them its not a question of a disadvantage or prejudice suffered by the arrested person. They focus on the law. The law is the law and that is the High Court’s business.
One of the roles of the High Court is to act as an impartial arbiter in disputes between the all-powerful State and the individual. In drink driving cases their view has been that the consequences of a successful prosecution are severe.
It is a guaranteed disqualification from driving and a guaranteed conviction.
Those two things are mandatory if you lose your case. The knock-on consequences are potentially life changing. You may lose your job, your home, your marriage. In short, you may lose everything.
if the consequences of a legal demand
carry severe penalties,
then the demand must be made
in the correct legal manner.
This all comes from the initial arrest. None of this happens unless you’re arrested.
The High Court have said that if the State are going to use the law to try to disqualify you from driving, then they had better make sure that they apply the law properly.
This means that if the law states that you should be required to give blood but that you may opt for urine, then this is precisely what the Garda must require of you in the Garda station. Precisely that and nothing else.
It’s a strict interpretation of the law but Justice McMenamin in Freeman v DPP (2009) explained the High Court’s thinking here.
Justice McMenamin said that the law was “penal” here.
In other words, you are required to provide a specimen of blood or urine to the Gardai. This isn’t optional, you must do it.
If you don’t, if you refuse or fail, you run the risk of a €5,000 fine and/or six months in jail.
That’s what penal means. It’s an extremely serious punishment.
As far as Justice McMenamin was concerned if the State were going to hold an extremely serious punishment over you, that created a “duty”.
He explained what this duty meant:
“This duty [had to] be construed mutually. It cannot be ‘penal’ for an accused but not ‘penal’ for a member of An Garda Siochana who administers the test”.
In essence, if the consequences of a legal demand carry severe penalties for non-compliance, then the demand must be made in the correct legal manner.
That is why the law in these areas is so strict.
The drink driving limits have not changed from 2022 or 2021 or even 2020.
Something else that hasn't changed are the systems the courts oversee to make sure that your rights are protected if you find yourself under arrest.
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