The two most common drink driving offences in Ireland are section 49 of the Road Traffic Act, 1961 (commonly known as “drunken driving”) and section 50 of the same act, commonly known as “drunk in charge”.
Drunk in charge-section 50
To be successfully prosecuted for the offence of being “drunk in charge” under Section 50 of the Road Traffic Act, 1961) it is necessary to prove
- The offence occurred in a public place
- That the accused person intended to drive or intended to attempt to drive the car
- That the accused person was in charge of the vehicle.
There is a presumption in law that the accused person intended to drive or intended to attempt to drive the vehicle; it is up to the accused person to prove to the contrary.
Whether the accused person was attempting to drive in the eyes of the law will depend on the facts of each case but there is an important Supreme Court case, DPP v Byrne (2001, unreported) where the accused person was held to be in charge with intent to drive under section 50.
In this case the accused
- Was in the driver’s seat
- Was actually asleep
- Was pulled in to the hard shoulder
- The keys were in the ignition, turned two clicks.
As in the previous offense of “drunken driving” the Garda can only arrest you after he has “formed the opinion” that you are committing or about to commit an offense under section 50. The Garda does not have a general power of arrest.
It is worth noting that to prove a section 50 offence the Garda will not have to prove that you were driving, only that you were in charge of the vehicle and that you intended to drive the car or intended to attempt to drive.
The concentration of alcohol required to prove this offence is an excess of alcohol in the blood of 80 milligrammes of alcohol to 100 millilitres of blood. There are other tests in relation to testing breath (35 microgrammes of alcohol per 100 millilitres of breath) and urine (107 microgrammes of alcohol per 100 millilitres of breath).
The sample must be taken within 3 hours of the alleged commission of the offence.
Lawful arrest under section 49 and 50, Road Traffic Act, 1961
It is important to note that the opinion of the Garda in order to arrest you lawfully must be a reasonable one and must be formed after ascertaining and considering the facts.
For the arrest to be lawful, there are 2 factors required:
1. The driver must be informed why he is being arrested in plain language
2. The driver must be informed that he is no longer at liberty.
Other important facts about drunk in charge
You cannot be given section 1(1) of the Probation Act, 1907. The penalties on conviction for section 50 are a fine of up to €5,000 and/or 6 months in prison.
Since October, 2011 the disqualification periods for “drink driving” offences has changed and will depend on whether you are an experienced driver or not and the level of alcohol you have in your system.
Contact a solicitor if you have been charged with either section 49 or 50 of the Road Traffic Act, 1961 as these are serious offences which can have long term consequences in many aspects of your life including from an employment and insurance perspective.