NEWS ANALYSIS:Discrepancies in the numbers of positive tests for drink or drugs, and the comparatively low number of convictions has led to claims that the system is compromised. Ruadhán Mac Cormaicreports.
IN A REPORT on road safety that he co-wrote two years ago, Prof Denis Cusack, head of the Medical Bureau of Road Safety, noted a curious discrepancy between the number of positive blood and urine tests confirmed by the bureau and the number of drink driving convictions reported by the Garda.
The trend was unmistakable: while the conviction rate based on breath testing was going up, the rate for blood and urine tests was falling rapidly.
In 2001, the conviction rate based on blood and urine samples was 73 per cent.
Two years later it was 34 per cent, but by 2005 the figure had fallen to 24 per cent.
Speaking last year at the Oireachtas joint committee on transport, Prof Cusack said: "I spent two or three days telling myself I did not believe these figures.
"I went back over the figures, convinced I was missing something very obvious. [Overall] there has been a continual decline in the number of convictions recorded by an Garda Síochána based on blood and urine samples."
As it happens, the latest figures available from the Central Statistics Office (CSO) for 2006 show the conviction rate for drug driving - which in all cases involves blood and urine samples - was also 24 per cent. Of 113 drug driving incidents detected by gardaí that year, only 27 have so far led to convictions.
Until the CSO recently took over responsibility from the Garda for compiling crime statistics, figures on drug driving convictions were impossible to isolate.
But the new statistics appear to confirm anecdotal evidence that the State is finding it difficult to bring successful prosecutions for the offence.
Some blame lawyers for taking vexatious cases, but barristers and solicitors cite a litany of problems they believe undermines the current system.
Barrister Martin Dully suggests problems have arisen with a "very significant delay" of up to four months in receiving the results of samples from the medical bureau, which appears not to issue a certificate until it has received the result of a second test, which is carried out in a UK laboratory.
"The significance of that is that the bureau are under a statutory obligation to carry out a test and issue a certificate as soon 'as it practicable'," he says.
Barrister Justin McQuade argues that the fact that tests are being carried out by a scientist at a UK laboratory means there is a breakdown in the evidential sequence, which causes another problem.
"There is input into the certificate by someone who is not amenable to the Irish courts, and there is a break in the chain of evidence," he says.
In line with its statutory remit, the bureau does not test for quantities of drugs in a given sample, because unlike alcohol there is no legal limit for drugs.
But defendants have successfully argued that drugs such as cannabis remain in one's system for several weeks, and the simple presence of a drug does not in itself prove impaired driving. This was the basis for successful defences in at least two district courts - Wicklow and Ballyshannon, Co Donegal - in the past two months.
"In theory you could have a defendant who took one smoke of a joint at a party, and two weeks later he could come across a checkpoint and fall foul of the law," says Daragh Hassett, a Co Clare solicitor.
"These cases appear to throw up points of law for solicitors to exploit," he adds.
Evan O'Dwyer, a solicitor in Co Mayo, claims the practice of taking multiple specimens from a sample at different dates causes another difficulty.
"There is the power to take a sample and to analyse it, but there is no statutory basis for you to analyse a sample today for alcohol and in three months' time to analyse the same sample again.
"The integrity has been compromised," he says.
The medical bureau did not return calls for this article, but while a Garda spokesman said the force is satisfied there are "no issues" with the current legal regime, the Department of Transport says it is currently reviewing legislation on drug driving "and the appropriate enforcement options that would apply to any new legislation."