THE PURPOSE OF THIS ARTICLE is educational, written to help people better understand the law in this area. It will challenge some assumptions and -hopefully- increase knowledge.
Part One: Technicalities, Politicians, Judges & Summonses
There are no such things as legal ‘technicalities’. There never have been. It’s just a phrase that’s used by people who either don’t understand the law or are lazy. It’s a popular term among the media, which explains the next paragraph.
If the law can be reduced to “technicalities” why bother to try to understand it? It’s like saying that such-and-such a world leader is a “monster”. If they’re a ‘monster’ I can shut down any critical thought because, well, they’re a monster.
‘Technicalities’ do not exist. The law exists. Either the law is followed, in which case the motorist may be convicted, or it is not, in which case the motorist is acquitted.
Politicians create laws, not lawyers, judges or the police.
The parliament (Oireachtas) creates legislation and if legislation is approved it become law.
Each law clearly sets out what action must be committed before someone can be convicted of an offence. Therefore, laws have to be precise. If people could unwittingly commit a criminal offence without being aware of it, it would lead to chaos.
A judge’s job is to interpret and apply the law. That means applying the law as it is, not as one side would like it to be when their case starts to fall apart in court.
If you’re asking the judge to interpret the law differently so that they end up ‘saving’ a weak case, you’re asking the judge to ‘legislate’, something they cannot do.
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If you end up in court, it means you’ve received a summons.
A summons is an ‘allegation’. It will state that on a specific day in a specific place you are ‘alleged’ to have broken the law by committing some offence.
The key word here is “alleged”.
The police are alleging that you broke the law, but an allegation is not proof beyond reasonable doubt that you did break the law.
A case is only proven if and when a judge (or jury) finds you guilty. The decision is in their hands alone, regardless of what the police ‘allege’.
Part Two.
Drink driving
So, you’re over the limit. Isn’t that the end of it?
Not quite.
A drink driving conviction is dependent on a number of elements, each of which need to be proven.
Being over the limit -while very important- is only one element.
So, what are the others?
The summons
When you get a summons for drink driving the wording is something like this:
“On [date] at [location]…did drive a mechanically propelled vehicle [registration] in a public place while there was present in your body a quantity of alcohol such that within three hours of driving the concentration of alcohol in your body…exceeded the prescribed limit”.
(a) Driving/attempting to drive
The drink driving legislation creates two different offences: driving and attempting to drive.
So, if you’re sitting in your parked car (while over the limit) and you’re turning the key in the ignition, are you driving?
Probably not.
But you might be guilty of ‘attempting to drive’.
In this scenario if you’re charged with driving (instead of attempting to drive) you might be acquitted because the wording of the summons (i.e. the allegation) was arguably incorrect.
That would mean that even though you are over the limit one of the essential proofs of the summons (that you were attempting to drive rather than driving) is not proven.
(b) Mechanically propelled vehicle
This is a fancy expression for basically anything with an engine.
It includes electric vehicles too.
This element is usually very easy to prove: a car is a mechanically propelled vehicle. But what if you crash the car and it’s written off? It may not be capable of being mechanically propelled anymore. Is it still legally regarded as a ‘mechanically propelled vehicle’?
Yes. According to David Staunton “the definition of a ‘mechanically propelled vehicle’…is now qualified to the extent that if a vehicle is disabled through a ‘collision’ it will continue to be regarded as a ‘mechanically propelled vehicle” (Drunken Driving, 2nd ed, p.34).
(c) Public place.
This sometimes causes difficulties.
If the Gardai chase you onto the driveway of your private property, they can still -dependent on the circumstances- legally arrest you for drink driving.
What about supermarket carparks? These are privately owned, so cannot be regarded as a public place, right?
Wrong. The definition of what a public place is includes “any road, street or other place to which the public have access, whether as of right or by permission”.
So, while the supermarket car park is privately owned, if you can drive into and out of it (which is the case with almost all carparks) it’s regarded as a public place.
What about a property where visitors can sometimes attend? Is that regarded as a public place?
Its not clear. But the general rule is that if the public would be challenged and told to get off the property when they entered, it’s not usually regarded as a public place.
just because you’ve exceeded the drink driving limit,
doesn’t automatically mean you’ll be put off the road.
(d) Time of driving
This is sometimes hard to prove.
In the majority of prosecutions for drink driving the police will need to be able to prove what time you drove.
In practical terms this is simple where they observe you driving on the road, and they pull you over. Problems can occur where somebody reports you and by the time the police get there, you’ve pulled in and are no longer driving.
If someone (a concerned citizen) reports you to the police, the police have two issues to overcome.
In order to convict you of drink driving they need to be able to prove that:
(i) You actually drove, and
(ii) What time you drove.
If someone reports your driving, there needs to be some evidence of that i.e. a statement from that person. If they don’t make that statement, there’s no proof that you actually drove.
This is the proof business after all.
Why would the police need to know what time you drove? Because the summons (above) says “within three hours of driving”. That means the police need to get the specimen of blood, urine or breath out of you within three hours of your driving.
If they can’t the prosecution for drink driving may fail completely.
The police will always know what time you gave the specimen of blood, urine or breath because it is recorded on documentation in the station when you provide it.
But real difficulties can occur in trying to figure out what time you drove at.
As Staunton says, “the fact and time…of driving…are essential proofs in a prosecution [for drink driving]” (Drunken Driving, p. 23).
If the police charge you with drink driving and they cannot prove what time you drove at, you may be acquitted.
Of course, if the police arrive and don’t know what time you drove, they can always ask you. If you blurt out the answer, then that will very likely fix the ‘time of driving’ conundrum.
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THESE ARE SOME of the essential proofs that are required to be proven in order to convict someone of drink driving.
Its not an exhaustive list. There are others too.
Each of the elements of the summons must be proven. All of them. If they are not, you cannot be convicted.
Some of them are easy to prove, e.g. your name, the date, the location, registration number of your car. On occasion others have been shown to be notoriously difficult to prove.
But it does show that just because you’ve exceeded the drink driving limit, it doesn’t automatically mean you’ll be put off the road.