The Gazette 1990

GAZETTE

SEPTEMBER 1990

A d d b a c k c a l c u l a t i o ns in I n t o x i c a t ed D r i v i ng O f f e n c es

likely on test to exceed the limit. There is also inbuilt in the present legislation the "anti-hip flask" provision of Section 18 of the 1978 Road Traffic Act. That section eases the pro- secution's path by providing it is unnecessary for them to show no alcohol was con- sumed after the alleged offence and before the speci- men is provided. The section further provides that if the defence produces theevidence of such consumption it must be disregarded, unless the court is satisfied by or on behalf of the defendant that, but for such consumption, he would not have exceeded the prescribed limits - a view also taken in Patterson -v- Charlton [1986] R.T.R. 18. In Rowlands -v- Hamilton [1971] 1All ER 1089 the defence succeeded but the court put a strict construction on the then English provision in S 1(1) of the Road Safety Act 1967. This strict construction led to a similar dismissal (on

Question In a prosecution for "intoxicated" driving can evidence be admitted in Irish Law to show that the driver's alcohol level was at the time of driving (or attempting to drive/or in charge) higher than that shown in the analysis of a specimen taken sometime after the alleged offence?

The central criminal law criterion in Sections 49 & 50 of the 1961 Road Traffic Act (as substituted by the 1978 Act) is that a person shall not drive, attempt to drive or be in charge "while there is present in his body a quantity of alcohol such that, within three hours after so

This question is important and will be more important in view of the fact that Ireland is likely to have a reduced limit in the early 1990's due to E.E.C. norms being introduced. English Answer It has received a positive answer in England in Gumb/ey -v- Cunningham [1989] 1 All ER 5. However, that decision is one on the specific wording of the English S 6(c) 7510(2) of the Road Traffic Act 1972 (as both substituted by Transport Act 1981). The vital wording being "Evidence of the proportion of alcohol or any drug in a specimen of breath, blood or urine provided by the accused shall, in all cases, be taken into account, and it shall be assumed that the proportion of alcohol in the accused's breath, blood and urine at the time of the alleged offence was not less than in the specimen", the alleged offence being that the proportion of alcohol (intoxicant) exceeds the pre- scribed Limit (80mgs/100ml blood in England; 100/100 in Ireland). Possible Irish Answer No Irish Decision on the point is known to the author as yet. In view of the importance of the question a likely answer in Ireland is suggested here. It must be remembered that we are dealing with the law of evidence primarily as there is no statutory provision, as of yet, directing a court to add back on a specific basis.

By Robert Pierse,* B.C.L., LL.B., Solicitor

driving (attempting/in charge) the concentration of alcohol in his blood/urine . . . " will exceed the prescribed limit (100/100 blood or 135/100 urine). It will be seen from this provision there is a "carry for- ward" provision or a "related back" provision already in existence in Irish Law. In view of the fact that the human body stimulates alcohol faster than it eliminates it this could produce somewhat unusual re- sults. Thus if one drove a short distance immediately after 4 - 5 quick ones (fluid oz of " . . . there is e " ca r ry f o rwa r d" provision or a "related back" provision already . . . in Irish law." whiskey/gin) and was tested (particularly a urine test) one might escape; but not so an hour later, when one is more

3.

Robert Pierse.

252