IMAGINE YOUR SON Tom has gone to a party.
He’s generally a responsible young man but at the party he foolishly smokes a joint. He also has a couple of beers.
The party finishes at 3am and Tom decides to drive home.
So much for being a responsible young man.
“If Tom pays the fixed charge notice
and goes off the road for 3 months,
can the State later prosecute him for drug driving?
Is this not “double jeopardy”?”
Tom comes to a Garda checkpoint. He’s asked to blow into a device to test for alcohol in his breath. He fails and is arrested for drink driving.
Tom is brought to the local Garda station and is required to allow the doctor to take a specimen of blood from him or if he likes, he can opt to provide a urine specimen.
Tom isn’t afraid of needles and allows the doctor to take a blood specimen. Soon after, he is released from Garda custody.
Feeling sorry for him the Garda kindly drops him home. Yes, sometimes the Gardai do this.
About 10 days later Tom receives a letter from the Medical Bureau of Road Safety (MBRS). The MBRS are the State laboratory that analyses blood and urine specimens.
The letter shows that the concentration of alcohol in his blood when he was arrested was 51.
The legal limit is 50.
Almost 7 weeks later Tom receives a letter in the post from the Garda fixed charge processing office.
As he has exceeded the legal limit -just- it tells him that if he pays the sum of €200, he will be disqualified from driving for 3 months.
He is told that he has 28 days from the date of the notice to pay it. If he doesn’t, he will be summonsed to court at a later date.
While he is thinking about what to do the Medical Bureau of Road Safety are back in touch.
They send Tom another letter.
They’ve tested the blood sample he gave for drugs. Testing blood samples for alcohol is very quick, a few days at most. But testing blood for drugs takes weeks.
And now the results are in.
The letter tells Tom that his blood was found to contain cannabis. Worse, the level of cannabis in his system was above the legal limit.
This means that he will certainly receive a summons to court for drug driving at some point. If he is convicted in court of drug driving, he’ll be disqualified for 12 months.
So, Tom has a conundrum.
If he pays the fixed charge notice for drink driving, he’ll go off the road for 3 months. But he also knows that he’s in real danger of getting a future summons for drug driving, which carries a 12-month disqualification.
Will he potentially face two disqualifications?
Can he be convicted of drink driving and drug driving, even though it’s the same incident?
"By their nature courts like fairness.
They dislike unfairness.
Being effectively disqualified twice for the
same incident would likely be regarded
as simply unfair."
TOM'S DILEMMA IS NOT unique. I encountered just such a scenario a few months ago.
I asked one of the country’s top road traffic barristers for their view on this issue. I won’t name them as I think there will be a High Court challenge to cases of this type very soon and that barrister may be involved on one side or the other.
I asked them to give me a legal opinion. The question I asked was:
“If Tom pays the fixed charge notice and goes off the road for 3 months, can the State later prosecute him for drug driving? Is this not “double jeopardy”?”
______________
When the law on drink and drug driving was being drafted, nobody considered scenarios like Tom’s. It just slipped through the net.
So, if the law doesn’t specifically deal with situations like Tom’s, then “the general principles concerning prosecutions arising from the same transaction/events/conduct must be considered”.
The advice went on to say that there is legal authority for the idea that a person cannot be convicted of more than one offence from the same incident.
Here comes the technical part, bear with me.
_________________
Drink driving prosecutions are graded into 4 separate categories:
· being simply too drunk to drive- section 4(1),
· having excess alcohol in your blood- section 4(2),
· excess alcohol in your urine- section 4(3) or,
· excess alcohol in your breath- section 4(4).
So, if you provide a blood specimen the charge will generally read “contrary to section 4(2) of the Road Traffic Act 2010”.
If you provide breath it will read “contrary to section 4(4) of the Road Traffic Act 2010” etc.
But you can’t be convicted of being simply too drunk to drive -section 4(1)- and having excess alcohol in your breath - section 4(4)- if you provided a breath specimen.
That was decided in State (Collins) v. Kelleher (1983) where the Supreme Court said that “these were alternative charges and there was no jurisdiction to convict a person of multiple offences”.
So here are Tom’s choices.
If he does not pay the fixed penalty notice he could rely on the Supreme Court decision to argue he shouldn’t be convicted of drink driving and drug driving.
But if he doesn’t pay the State would still be entitled to chase him later for a drug driving prosecution.
If he does pay the notice, he might be able to argue that having been convicted already (paying the notice) he cannot be convicted of another offence (drug driving) “arising from the same transaction/events/conduct”.
"That’s the beauty of the
fixed penalty notice regime:
if you pay them,
they are not regarded as convictions."
If Tom pays the notice, he might have a good argument to say that having been effectively convicted once he shouldn’t be convicted later of drug driving.
Paying the fixed penalty notice now would put Tom off the road for 3 months. If he doesn’t pay it the State could bring that drug driving prosecution later. If he was convicted then, Tom would go off the road for 12 months.
The advice I was given was that “there was no specific answer” to Tom’s conundrum.
But all the same it seems like a “no-brainer”: Tom should pay the notice.
BUT ONE FURTHER WRINKLE exists.
This was not covered by the advice I received.
If Tom does pay the fixed penalty notice he is not convicted of drunk driving.
That’s the beauty of the fixed penalty notice regime: if you pay them, they are not regarded as convictions.
This is because convictions can only be imposed by a judge in court, not some fines office somewhere.
So, if Tom pays the notice and goes off the road for 3 months this is not a conviction for drink driving.
If he doesn’t pay it and ends up being summoned to court later and is convicted, that is, obviously, a conviction.
So, in theory, if Tom paid the notice and went off the road, he could still be prosecuted later for drug driving because the fixed notice is not regarded as a conviction and the Supreme Court case of Kelleher above only prohibits being convicted twice for the same offence.
If Tom pays the notice he is not convicted.
So conceivably the State could decide to prosecute him later for drug driving.
If they did, Tom could end up being disqualified twice.
But will he?
I doubt it.
One of the purposes of road traffic acts is to ensure that people who pay fixed notices, or are convicted, are disqualified from driving.
In other words, that the motorist goes off the road.
If Tom pays the notice and goes off the road for 3 months, it seems very unfair that he could also be disqualified later for 12 months for effectively the same offence.
So how would the courts decide this issue?
We don’t know for sure yet but there are some clues.
By their nature courts like fairness.
They dislike unfairness.
Being effectively disqualified twice for the same incident would likely be regarded as simply unfair.
And that might run headlong into the judicial notion of ‘fairness’, a fundamental cornerstone of the law.
We don’t know for sure right now, but I expect we’ll have an answer soon from the High Court.
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