Legal fears delay plans for random breath-tests

LEGAL concern about violating the rights of the individual is the primary reason why random breath-testing has yet to be introduced, Transport Minister Martin Cullen said yesterday.

But he told the cross-party Oireachtas transport committee he was determined to make progress on the issue to address the carnage on the nation’s roads.

The outsourcing of speed cameras was another issue he wanted to speed up.

“I will shortly bring forward legislation to provide an appropriate statutory basis for the pursuit of this proposal,” he told the committee. There would be no connection between the fines gathered and the funding of the operation, he said, meaning there won’t be an effort to “catch” motorists just to boost receipts.

In addition, Mr Cullen said, the framework would be in place for a “significant extension” of the penalty points system by April next “at the latest”.

Just four of the 69 penalty point offences are currently being applied, despite the system being introduced three years ago. Much of the delay has been blamed on the fact that the system is not yet fully computerised.

Mr Cullen said his department was ready to extend the range of offences, but that the Department of Justice and Garda Síochána still required more time. Once ready, penalty points would be extended to offences such as dangerous overtaking and failure to obey traffic lights and stop signs, he indicated.

By the end of 2008, 1,200 gardaí would be deployed to the Traffic Corps, Mr Cullen said.

But random breath-testing posed a legal conundrum, he indicated. The procedure is widely used the EU but, significantly, not in Britain. Neither is it used in the United States.

“This is significant as... the US has constitutional protections that are very close to those that we enjoy here,” Mr Cullen said. The “core issue” is the question of proportionality versus individual rights.

Proportionality is a legal concept requiring any law adopted be proportionate - not excessively powerful in relation to the objectives it is meant to achieve.

Mr Cullen said he had sought both the Attorney General’s advice and independent legal opinion. He was willing to sit down with Opposition TDs to discuss that advice and see if a cross-party resolution could be found.

Testing drivers for drugs other than alcohol was also a major concern. Figures from the Medical Bureau of Road Safety showed that, by the end of September, 527 drivers had tested positive for drugs, up 32% on 2004 figures. “The question is how you test for it [randomly] without impinging on the individual’s rights,” Mr Cullen said.