Wednesday 28 September 2016

State is still struggling to execute own laws properly

Another procedural failure may result in drink drivers avoiding prosecution, writes Dearbhail McDonald

Published 27/09/2015 | 02:30

Another procedural failure may result in drink drivers avoiding prosecution
Another procedural failure may result in drink drivers avoiding prosecution

Did you hear the one about the Romanian who escaped a drink-driving rap because his breathalyser test result wasn't printed in Irish?

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It sounds like the start of a groan-inducing 'Paddy Irishman' joke.

But the punch line is much worse: hundreds of drink drivers may now escape prosecution as a result of a legal challenge by Mihai Avadenei, a Romanian national who was stopped by gardai with a strong smell of alcohol on his breath after being clocked driving 80kmh in a 50kmh zone.

Mr Avadenei, who according to the prosecution has 'a good grasp' of the English language, failed a roadside alcohol test and was brought to Store Street garda station in Dublin, where a detailed specimen was taken under an Evidenzer breath-test machine.

For good measure, an interpreter was called by gardai in case there were any linguistic misunderstandings. And after the Evidenzer test showed Mr Avadenei was over the limit - there was a concentration of 54 microgrammes per 100 millimetres of breath - he signed a document certifying his results and, for all intents and purposes, his guilt.

Bang to rights, right?

The Evidenzer alcohol testing unit, rolled out in 86 garda stations around the country, is the weapon in the State's arsenal to fight the scourge of drink driving.

It is more simple and consumes less time and money than the alternatives. Blood and urine samples (the alternatives) can be something of a procedural nightmare due to the need to have medical staff available, stopping and starting the detention clock in garda custody and the messy, yet necessary, business of proving every step in court.

In contrast, Evidenzers are like silver bullets: all you need is a certificate verifying the results and it's game, set and match for the State and road safety.

Or at least it should be.

A silver bullet, by definition, is a simple and seemingly magical solution to a complicated problem.

But last week emergency laws were introduced after the High Court ruled in the Avadenei case that results from the Evidenzer alcohol testing units could not be used as evidence in court if the certificate bearing the results was not printed in English and Irish as the law required.

Having introduced strict regulations which state that the prescribed form for such statements was bi-lingual, the State - through the aegis of the gardai - presided over a system whereby Evidenzer test results were produced in English even though the €10,000-a- pop machines have the capacity to print in Irish.

This was no mere loophole: this was a failure by the State, which prints blood and urine samples on bi-lingual forms, to execute its own laws.

It is the type of procedural failure that saw hundreds of speeding cases thrown out last year.

That was because of the State's failure to provide any evidence of images of vehicles at the centre of speeding fines: despite hi-tech speed cameras, gardai were not attaching photos with speeding summonses.

In the wake of the Avadenei and other rulings, we cry foul at the prospect of how 'a mere technicality' could once again thwart the battle to make Irish roads safer.

But technicalities matter.

Just ask Taoiseach Enda Kenny, who last week agonisingly held aloft the technical finding in the Interim Fennelly Report that he hadn't sacked the former Garda Commissioner when all of the available evidence, supported by opinion polls on the matter, point to the conclusion that he did.

We are all guilty of hiding behind technical fig-leafs from time to time.

And the truth is, when it comes to road traffic offences in general - and speeding and drink-driving ones in particular - middle Ireland has yet to bridge the gap between the spirit and letter of the law.

Last year, High Court President Mr Justice Nicholas Kearns struck a chord when he observed (in the speeding/photo challenge) that the ingenuity of defence lawyers in the context of Road Traffic Act prosecutions is "legendary".

They are indeed, although the Superior Courts have, in recent years, adopted a tough line towards unmeritorious ingenuity as distinct from genuine challenges, such as the Avadenei one, to flawed legislation and practice.

Indeed, the high failure rate of legal challenges is, I feel, one of the reasons why the State was so complacent about Avadenei and scrambled to introduce emergency laws despite having been placed on notice about the potential fallout from early last year.

It's all about supply and demand. And lawyers, ingenious or otherwise, do not operate in a vacuum - they act under instruction from their clients.

Ask yourself: why is it that our road traffic laws, crying out to be codified, are among the most challenged laws in our courts?

Ask yourself: how is it that certain lawyers can command €5, 000 in the non-jury District Court to defend a drink-driving prosecution?

These lawyers are not being paid by uninsured boy-racers from marginalised communities.

It is the professions, the great and the good and the business elite - even the parish priest - who are paying lucrative sums to exploit weaknesses in the system.

That's not to say that the State should be given a free pass: those who make the law must abide by it.

Road safety is also big business. The State, which reduced our road traffic corps by two-thirds, still takes in vast sums of revenue from road traffic violations.

The Go Safe Consortium which holds the €80m contract to operate speed cameras even changed its status to unlimited to maintain financial secrecy over its profits, which at one point were €50,000 a week.

Far too many families know the true cost of our failure to adequately resource and implement road safety rules.

When the incompetence of the State collides with the ingenuity of the law, the results can be catastrophic.

But all the laws in the world don't count unless we, as a society, are prepared to accept the consequences when we break them.

Sunday Independent

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