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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
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?
3.
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.
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
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
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
Robert Pierse.
252