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31 2005

Railway Safety Act 2005

Chapter 2

Intoxicants

Function of the Bureau in relation to analysis under Chapter.

96. —(1) The Bureau shall perform the functions assigned to it by this Chapter.

(2) In particular, and without prejudice to the generality of subsection (1), the Bureau shall arrange for—

(a) the receipt and analysis of specimens of blood and urine forwarded to the Bureau under this Part and the issue of reports on such analyses,

(b) the determination, in respect of such specimens, of the concentration of alcohol in the blood or urine and of the presence (if any) of a drug or drugs in the blood or urine, and

(c) the issue of certificates required under this Chapter to be issued by the Bureau.

(3) The Director shall exercise general supervision in relation to the performance by the Bureau of the functions assigned to it by or under this Chapter.

(4) No action or other legal proceedings lie (except in the case of wilful neglect or default) against the Director or any member, officer or employee of the Bureau by reason of, or arising out of, any analysis or determination under this Part.

Offences involving intoxicants by persons working on railway property.

97. —(1) A safety critical worker who performs a safety critical task, or who makes himself or herself available to perform such a task by attending at work, while being unfit, is guilty of an offence.

(2) A safety critical worker who performs a safety critical task, or who makes himself or herself available to perform such a task by attending at work, while there is present in his or her body a quantity of alcohol such that, within 3 hours after so performing that task or of attending at work, the concentration of alcohol—

(a) in his or her blood will exceed a concentration of 80 milligrammes of alcohol per 100 millilitres of blood,

(b) in his or her urine will exceed a concentration of 107 milligrammes of alcohol per 100 millilitres of urine, or

(c) in his or her breath will exceed a concentration of 35 microgrammes of alcohol per 100 millilitres of breath,

is guilty of an offence.

(3) The Minister may, by regulations, provide for other amounts, for the time being, to stand in lieu of any of the amounts of alcohol concentration specified in subsection (2)(a), (b) or (c).

(4) A draft of every regulation proposed to be made under subsection (3) shall be laid before each House of the Oireachtas and the regulation shall not be made until a resolution approving of the draft has been passed by each such House.

(5) In this section and in section 87 , “unfit” means, in relation to a safety critical worker, being under the influence of an intoxicant to such an extent that his or her ability to perform a safety critical task, without exposing a person (including himself or herself) to danger or risk of danger, is for the time being impaired.

Obligation to provide specimen of breath.

98. —(1) Where an authorised person or a member of the Garda Síochána is of the opinion—

(a) that a safety critical worker, who is performing a safety critical task or who has made himself or herself available to perform a safety critical task by attending at work,

(i) has consumed intoxicating liquor, or

(ii) is committing or has committed an offence under section 97 ,

or

(b) where a railway incident occurs, that—

(i) a safety critical worker was performing or had performed a safety critical task on the railway infrastructure, or on the train, involved with the incident, or

(ii) a safety critical worker failed to perform a safety critical task expected of him or her, on the railway infrastructure, or on a train, involved with the incident,

or at the request of an inspector who is of such opinion, he or she may make a requirement of the safety critical worker under subsection (3)(.

(2) Without prejudice to subsection (1), a member of the Garda Síochána or an authorised person may, for the safe operation of a railway undertaking, at random and in circumstances that are reasonable, make a requirement under subsection (3) of a safety critical worker who is performing a safety critical task or who has made himself or herself available to perform a safety critical task by attending at work.

(3) A member of the Garda Síochána or an authorised person, may, in the circumstances referred to in subsection (1) or (2), require a safety critical worker—

(a) to provide, or to accompany him or her to a place (including a vehicle) at or in the vicinity of the railway infrastructure concerned and there require the worker to provide, by exhaling into an apparatus for indicating the presence of alcohol in the breath, a specimen of his or her breath, or

(b) where the authorised person or member does not have such apparatus with him or her, to remain (for not more than one hour), at an appropriate place on the railway infrastructure concerned or at the scene of the incident, in his or her presence or in the presence of another authorised person or member of the Garda Síochána until such an apparatus becomes available to him or her and the authorised person or member may then require the worker, to provide by exhaling into such an apparatus, a specimen of his or her breath.

(4) Where an authorised person is of the opinion that a safety critical worker, who is performing a safety critical task or who has made himself or herself available to perform a safety critical task by attending at work, has consumed intoxicating liquor, or is committing or has committed an offence under section 97 , and where a member of the Garda Síochána is not present, the authorised person shall require the safety critical worker concerned to remain (for not more than one hour), as the case may be, at an appropriate place on the railway infrastructure concerned or at the scene of the incident, in his or her presence or in the presence of another authorised person, pending the arrival of a member.

(5) A member of the Garda Síochána or an authorised person making a requirement under subsection (3) may indicate the manner in which the safety critical worker is to comply with the requirement.

(6) A safety critical worker who refuses or fails, to comply immediately with a requirement under this section, or to comply immediately with such a requirement in a manner indicated by a member of the Garda Síochána or an authorised person, is guilty of an offence.

(7) In a prosecution for an offence under this Chapter, it shall be presumed, until the contrary is shown, that an apparatus provided by a member of the Garda Síochána or an authorised person for the purpose of enabling a person to provide a specimen of breath under this section is an apparatus for indicating the presence of alcohol in the breath.

Arrest without warrant.

99. —(1) A member of the Garda Síochána may arrest a safety critical worker without warrant if he or she has reasonable cause to suspect that that worker is committing or has committed an offence under section 97 or 98.

(2) For the purpose of arresting a safety critical worker under subsection (1), where a member of the Garda Síochána has reasonable cause to suspect that the worker is committing or has committed an offence under section 97 or 98, the member may enter (if need be by force) any place where that worker is or where the member, with reasonable cause, suspects him or her to be.

Obligation to provide specimen following arrest.

100. —(1) Where a safety critical worker is arrested under section 99 , a member of the Garda Síochána may, at a Garda Síochána station, at his or her discretion, do either or both of the following:

(a) require the worker to provide, by exhaling into an apparatus for determining the concentration of alcohol in the breath, 2 specimens of his or her breath and may indicate the manner in which he or she is to comply with the requirement,

(b) require the worker either—

(i) to permit a designated medical practitioner to take from the worker a specimen of his or her blood, or

(ii) at the option of the worker, to provide for the designated medical practitioner a specimen of his or her urine.

(2) If the medical practitioner referred to in subsection (1)(b) states in writing that he or she is unwilling, on medical grounds, to take from the safety critical worker a specimen of the worker's blood or be provided by the worker with a specimen of the worker's urine, the member may make a requirement of the worker under subsection (1)(b) in relation to the specimen other than that to which the first requirement related.

(3) Subject to section 108 , a person who refuses or fails to comply immediately with a requirement under subsection (1)(a) is guilty of an offence.

(4) Subject to section 108 , a person who, following a requirement under subsection (1)(b)

(a) refuses or fails to comply with the requirement, or

(b) refuses or fails to comply with a requirement of a designated medical practitioner in relation to the taking under that subsection of a specimen of blood or the provision under that subsection of a specimen of urine,

is guilty of an offence.

(5) In a prosecution for an offence under this Chapter it shall be presumed, until the contrary is shown, that an apparatus provided by a member of the Garda Síochána for the purpose of enabling a person to provide 2 specimens of breath pursuant to this section is an apparatus for determining the concentration of alcohol in the breath.

Obligation to provide blood or urine specimen while in hospital.

101. —(1) Where a railway incident occurs in consequence of which a safety critical worker is injured, or claims or appears to have been injured, and is admitted to, or attends at, a hospital and a member of the Garda Síochána is of opinion that, at the time of the incident—

(a) the worker was working on the railway infrastructure or on a train involved in the incident, and

(b) the worker had consumed an intoxicant,

then the member may, in the hospital, require the worker either—

(i) to permit a designated medical practitioner to take from the worker a specimen of his or her blood, or

(ii) at the option of the worker, to provide for the designated medical practitioner a specimen of his or her urine.

(2) If the medical practitioner referred to in subsection (1) states in writing that he or she is unwilling, on medical grounds, to take from the safety critical worker a specimen of the worker's blood under subsection (1)(i) or be provided by the worker with the specimen of the worker's urine under subsection (1)(ii), the member may make a requirement of the worker under subsection (1) in relation to the specimen other than that to which the first requirement related.

(3) Subject to section 108 , a person who, following a requirement under subsection (1)

(a) refuses or fails to comply with the requirement, or

(b) refuses or fails to comply with a requirement of a designated medical practitioner in relation to the taking under that subsection of a specimen of blood or the provision under that subsection of a specimen of urine,

is guilty of an offence.

(4) Notwithstanding subsection (2), it is not an offence for a person to refuse or fail to comply with a requirement under subsection (1) where, following his or her admission to, or attendance at, a hospital, the person comes under the care of a medical practitioner and the medical practitioner refuses, on medical grounds, to permit the taking or provision of the specimen concerned.

Detention of intoxicated persons where a danger to themselves or others.

102. —Where a safety critical worker is at a Garda Síochána station having been arrested under section 99 , section 16 of the Road Traffic Act 1994 applies and references in that section to subsection (1) of that section are to be read as including references to this section.

Procedure following provision of breath specimen under section 100 .

103. —(1) Where, consequent on a requirement under section 100 of him or her, a safety critical worker provides 2 specimens of his or her breath and the apparatus referred to in that section determines the concentration of alcohol in each specimen, in case the apparatus determines that each specimen has—

(a) the same concentration of alcohol, either specimen, or

(b) a different concentration of alcohol, the specimen with the lower concentration of alcohol,

shall be taken into account for the purposes of section 97 (2) and the other specimen shall be disregarded.

(2) Where the apparatus referred to in section 100 determines that in respect of the specimen of breath to be taken into account the safety critical worker may have contravened section 97 (2) he or she shall be supplied immediately by a member of the Garda Síochána with 2 identical statements, automatically produced by the apparatus in the prescribed form and duly completed by the member in the prescribed manner, stating the concentration of alcohol in the said specimen determined by the apparatus.

(3) On receipt of the statements, the safety critical worker shall on being requested so to do by the member—

(a) immediately acknowledge such receipt by placing his or her signature on each statement, and

(b) return either of the statements to the member.

(4) A person who refuses or fails to comply with subsection (3) is guilty of an offence and is liable on summary conviction to a fine not exceeding €1,000 or to imprisonment for a term not exceeding 1 month, or to both.

(5) Section 107 (1) applies to a statement under this section as respects which there has been a failure to comply with subsection (3)(a) as it applies to a duly completed statement under this section.

Procedure to be followed relating to specimens taken or provided.

104. —(1) Where under this Chapter a designated medical practitioner has taken a specimen of blood from a safety critical worker or has been provided by the worker with a specimen of his or her urine, the medical practitioner shall divide the specimen into 2 parts, place each part in a container which he or she shall immediately seal and complete the form prescribed for the purposes of this section.

(2) Where a specimen of blood or urine of a safety critical worker has been divided into 2 parts pursuant to subsection (1), a member of the Garda Síochána shall offer to the worker one of the sealed containers together with a statement in writing indicating that he or she may retain either of the containers.

(3) As soon as practicable after subsection (2) has been complied with, a member of the Garda Síochána shall cause to be forwarded to the Bureau the completed form referred to in subsection (1), together with the relevant sealed container or, where the safety critical worker has declined to retain one of the sealed containers, both relevant sealed containers.

(4) In a prosecution for an offence under section 97 it shall be presumed, until the contrary is shown, that subsections (1) to (3) have been complied with.

Procedure at Bureau regarding specimens.

105. —(1) As soon as practicable after it has received a specimen forwarded to it under section 104 , the Bureau shall analyse the specimen and determine the concentration of alcohol or (as may be appropriate) the presence of a drug or drugs in the specimen.

(2) Where the Bureau receives 2 specimens of blood so forwarded together in relation to the same safety critical worker or 2 specimens of urine so forwarded together in relation to the same worker, it shall be sufficient compliance with subsection (1) for the Bureau to make an analysis of and determination in relation to one of the 2 specimens of blood or (as may be appropriate) one of the 2 specimens of urine.

(3) As soon as practicable after compliance with subsection (1), the Bureau shall forward to the Garda Síochána station from which the specimen analysed was forwarded a completed certificate in the prescribed form for the purpose of this section and shall forward a copy of the completed certificate to the safety critical worker who is named on the relevant form under section 104 as the person from whom the specimen was taken or who provided it.

(4) In a prosecution for an offence under section 97 , it shall be presumed, until the contrary is shown, that subsections (1) to (3) have been complied with.

Frustrating prosecution.

106. —(1) A safety critical worker shall not take or attempt to take any action (including consumption of alcohol but excluding a refusal or failure to comply with a requirement under section 100 ) with the intention of frustrating a prosecution under section 97 .

(2) A person who contravenes subsection (1) is guilty of an offence.

(3) Where, on the hearing of a charge for an offence under section 97 , the court is satisfied that any action taken by the defendant (including consumption of alcohol but excluding a refusal or failure to provide a specimen of his or her breath or urine or to permit the taking of a specimen of his or her blood) was taken with the intention of frustrating a prosecution under that section, the court may find him or her guilty of an offence under subsection (2).

Evidence in proceedings under this Chapter.

107. —(1) A duly completed statement purporting to have been supplied under section 103 (2) is, until the contrary is shown, sufficient evidence in any proceedings under this Chapter, of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the member of the Garda Síochána concerned with the requirements imposed on him or her by or under this Chapter prior to and in connection with the supply by him or her under section 103 (2) of such statement.

(2) A duly completed form under section 104 (1) is, until the contrary is shown, sufficient evidence in any proceedings under this Chapter of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the designated medical practitioner concerned with the requirements imposed on him or her by or under this Chapter.

(3) A certificate expressed to have been issued under section 105 is, until the contrary is shown, sufficient evidence in any proceedings under this Part of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the Bureau with the requirements imposed on it by or under this Chapter.

(4) In a prosecution for an offence under section 97 , it shall be presumed, until the contrary is shown, that each of the following persons is a designated medical practitioner—

(a) a person who by virtue of powers conferred on him or her by this Part took from another person a specimen of that other person's blood or was provided by another person with a specimen of that other person's urine,

(b) a person for whom, following a requirement under section 100 (1) or 101(1) to permit the taking by him or her of a specimen of blood, there was a refusal or failure to give such permission or to comply with a requirement of his or her in relation to the taking of such a specimen,

(c) a person for whom, following a requirement under section 100 (1) or 101(1) to provide for him or her a specimen of urine, there was a refusal or failure to provide such a specimen or to comply with a requirement of his or her in relation to the provision of such a specimen.

(5) Where, pursuant to section 100 or 101 a designated medical practitioner states in writing that he or she is unwilling, on medical grounds, to take from a person a specimen of his or her blood or be provided by him or her with a specimen of his or her urine, the statement signed by the medical practitioner is, in any proceedings under this Part, sufficient evidence, until the contrary is shown, of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it.

Defences.

108. —(1) In a prosecution of a safety critical worker for an offence under section 100 for refusing or failing to comply with a requirement to provide 2 specimens of his or her breath, it is a defence for the defendant to satisfy the court that there was a special and substantial reason for his or her refusal or failure and that, as soon as practicable after the refusal or failure concerned, he or she complied (or offered, but was not called upon, to comply) with a requirement under the section concerned in relation to the taking of a specimen of blood or the provision of a specimen of urine.

(2) In a prosecution of a safety critical worker for an offence under section 100 or 101 for refusing or failing to comply with a requirement to permit a designated medical practitioner to take a specimen of blood or for refusing or failing to comply with a requirement of a designated medical practitioner in relation to the taking of a specimen of blood, it is a defence for the defendant to satisfy the court that there was a special and substantial reason for his or her refusal or failure and that, as soon as practicable after the refusal or failure concerned, he or she complied (or offered, but was not called upon, to comply) with a requirement under the section concerned in relation to the provision of a specimen of urine.

(3) Notwithstanding subsections (1) and (2), evidence may be given at the hearing of a charge of an offence under section 97 that the defendant refused or failed to comply with a requirement to provide 2 specimens of his or her breath, or that the defendant refused or failed to comply with a requirement to permit the taking of a specimen of his or her blood or to comply with a requirement of a designated medical practitioner in relation to the taking of a specimen of blood, as the case may be.

(4) It is not a defence for a person charged with an offence under section 97 to show that, in relation to the facts alleged to constitute the offence, an analysis or determination under this Chapter, has not been carried out or that he or she has not been requested under section 98 to provide a specimen of his or her breath.

Penalties.

109. —A person guilty of an offence under this Chapter (other than section 103 (4)) is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 6 months, or to both.