Gardaí do not have the power to arrest a disqualified driver stopped at a checkpoint, nor do they have the power to seize their licence, The Irish Timeshas learned.
The issue is revealed in documents released under the Freedom of Information Act from the Road Safety Authority (RSA).
According to the documents: "Where gardaí stop a driver at a checkpoint, and are aware the person is disqualified for driving, and if the person produces a licence, the garda may request the licence but cannot seize the licence and return it to the licensing authority."
Senior gardaí confirmed last night that the reason a disqualified driver who refuses to surrender their licence was not subsequently arrested was because gardaí have no powers to do so.
The RSA document goes on to point out that when a "licence was issued on foot of false information or if there was a clerical error in processing the application, and the licensing authority request gardaí to recover the licence, the gardaí are not empowered to seize it, as things now stand."
The RSA wrote to the Department of Transport in February last year highlighting these issues, and requesting that the legislation be changed to give gardaí the necessary powers. The recommendations were part of a series of legislative requirements for the introduction of graduated licensing.
The RSA has also identified a further problem: the fact that being in possession of a fake licence is not an specific offence.
Currently a motorist caught with a fake licence can only be prosecuted for driving without a licence. In this case - and unlike disqualified drivers - the licence can be seized by gardaí.
However, the RSA has called for the possession of a fake licence to become a specific offence, and that gardaí be given powers to recover these fake licences.
"As a deterrent to having a fraudulent licence, it is proposed that a specific offence would apply, in addition to driving without the licence," the RSA recommends.
To further deter the use and supply of fake licences, the RSA has asked the Department to make possession of a fake licence, even while not driving, a specific offence.
Fergus O'Dowd, Fine Gael transport spokesman, said these legal loopholes undermined the road traffic enforcement work of gardaí.
"If gardaí can't effectively put disqualified drivers off the road, and arrest those who drive while disqualified, it is not an effective system," he said.
"Gardaí need to be properly resourced. They need roadside equipment so they can identify those drivers who have 12 or more points, or those who are uninsured and they need the laws to deal with them once they are identified," he said.
"Non-compliance such as this means the system cannot work. I am not satisfied that the current minister is being proactive enough. He is not doing his job properly. It would be a simple task to draft legislation to extend the garda powers as requested and he has not done it," Mr O'Dowd said.
A spokesman for the Minister for Transport Noel Dempsey said the Department would consider whatever "legislation is required to progress these issues and others identified".
The Department did not provide an answer when asked how long they had been aware of the problems, although since the RSA documents are dated February 2007, it would seem to be almost one year at a minimum.
A spokesman for the Irish Insurance Federation said that a motorist who was driving during a disqualification was "outside the terms of their policy".
"In the first instance they should tell their insurer they are off the road. If they subsequently are involved in a crash and make a claim while disqualified, it may be refused."
He said any third-party damages would be covered and that the insurer would then most likely seek to recover these from the policy holder.
