# Charged (Intoxicating Liquor Act 2003) alcohol consumption within 100m of offlicence



## black_pearl (25 Aug 2006)

Hi everyone,
A few months back, a few friends and I were stopped by a garda with open bottles of alcohol outside an offlicence where we'd just purchased them. We opened them ourselves. Our names were taken and we've just been charged with an offence under s17(5) of the Intoxicating Liquor Act 2003 for consumption of alcohol within 100 meters of an off-licence. Apparently we're each liable for a €300 fine.

I've been to my solicitor but he's on holidays until September so I've received advice from his secretary but she wasn't that sure of the advice she was giving - she hadn't actually realized that this was an offence! What I want to know (to calm myself down in the meantime!) is:

1-Does the fact that we didn't (as far as I can remember) actually consume the alcohol make any difference? The bottles WERE open but the garda came over so fast I don't think any of us actually drank anything.

2-If we get fined will such a conviction stay on our records? (One of us is a trainee teacher, another is sitting FE1 exams with a view to becoming a solicitor.) None of us have previous convictions and we were extremely co-operative with the garda, none of us were intoxicated at the time. We're extremely worried as to what implications this could have for us in the future.

I know that the off-licence is being taken to court with selling the alcohol to us.

Please don't give out - we know what we did was wrong, and aren't proud of it but it was just a lapse of good judgement. Any advice?


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## Crugers (25 Aug 2006)

That section of the act says:

(5) Any person who consumes any intoxicating liquor supplied by the licensee in a closed container for consumption off the licensed premises in a place which is within 100 metres of those premises is guilty of an offence and liable on summary conviction to a fine not exceeding €300.

If you can prove you didn't, or more correctly if the Garda can't prove you did "...consume..." you shouldn't be convicted...

Pity anyone who lives less than 100 metres for their local offie!


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## daithi (25 Aug 2006)

*Re: Charged (Intoxicating Liquor Act 2003) alcohol consumption within 100m of offlice*

It must have been a slow day for plod! My guess is that if it goes to court, the judge will throw it out, and probably give the prosecuting guard an ear bashing for timewasting..
daithi


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## Marion (26 Aug 2006)

*Re: Charged (Intoxicating Liquor Act 2003) alcohol consumption within 100m of offlice*



> I know that the off-licence is being taken to court with selling the alcohol to us.



Why?

Marion


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## ClubMan (26 Aug 2006)

*Re: Charged (Intoxicating Liquor Act 2003) alcohol consumption within 100m of offlice*



black_pearl said:


> Hi everyone,
> A few months back, a few friends and I were stopped by a garda with open bottles of alcohol outside an offlicence where we'd just purchased them. We opened them ourselves. Our names were taken and we've just been charged with an offence under s17(5) of the Intoxicating Liquor Act 2003 for consumption of alcohol within 100 meters of an off-licence. Apparently we're each liable for a €300 fine.
> 
> I've been to my solicitor but he's on holidays until September so I've received advice from his secretary but she wasn't that sure of the advice she was giving - she hadn't actually realized that this was an offence! What I want to know (to calm myself down in the meantime!) is:
> ...



You're almost a solicitor - surely you should know the answer?


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## z107 (26 Aug 2006)

*Re: Charged (Intoxicating Liquor Act 2003) alcohol consumption within 100m of offlice*

The whole thing sounds like a load on nonsense to me. So are you allowed to drink 101 metres away from an off-licence? Did the garda get a measuring tape out? How many people even know that this law exists?

The sickening thing is that while tax payers' money is being wasted on this, criminals seem to have free reign to do whatever they like.


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## ClubMan (26 Aug 2006)

*Re: Charged (Intoxicating Liquor Act 2003) alcohol consumption within 100m of offlice*



umop3p!sdn said:


> The whole thing sounds like a load on nonsense to me.


I agree - this thread looks suspiciously like a wind up to me personally.


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## black_pearl (26 Aug 2006)

I wish it was a wind up. Theres two reasons I believe the prosecution is being taken. First, it was rag week in my university so there were a lot of people out and therefore a lot of gardai.

Second, I've had a chat with the owner of the bar, who I know on a personal level, and apparantly their neighbour had complained regularly to the gardai of noise from the off-licence, and indeed had complained that evening. Because of this a garda was sent down to keep an eye on things. Later we came along and were caught.

This is a website which has been extremely useful to me in the past and I respect and am thankful for replies to my query. This is not a wind-up, I would not dream of wasting contributors time. I am indeed studying for my FE1s, however if I have questions the obvious person to ask is a college lecturer/tutor. Because I find this incident extremely embarrassing, especially as a law student, I do not feel I can approach any lecturer/tutor, for advice. My solicitor is on holidays and I'm anxious about my situation in the meantime. I'm sorry you seem to think that this is not genuine, I can only assure you that it is. I wish it wasn't.


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## ninsaga (26 Aug 2006)

*Re: Charged (Intoxicating Liquor Act 2003) alcohol consumption within 100m of offlice*



ClubMan said:


> You're almost a solicitor - surely you should know the answer?



BUSTED - in more ways than one


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## liteweight (26 Aug 2006)

Get over the embarassment...it could get worse. Go to a lecturer, I guarantee he/she will have heard a lot worse!! Find out if there's anything you should be doing before your solicitor gets back. I doubt this will be on your permanent record, or indeed have any effect, other than on your pocket...a fine. Good Luck.


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## JoeB (26 Aug 2006)

*Re: Charged (Intoxicating Liquor Act 2003) alcohol consumption within 100m of offlice*

Will the guard be able to provide evidence that you purchased the drink in that particular off licence?


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## CCOVICH (26 Aug 2006)

The relevant section of the Act is [broken link removed].

Does a paying a fine (resulting from a summary conviction) for a minor offence necessarily mean that you have a criminal record? I'm not sure that it does.


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## dam099 (27 Aug 2006)

CCOVICH said:


> The relevant section of the Act is [broken link removed].
> 
> Does a paying a fine (resulting from a summary conviction) for a minor offence necessarily mean that you have a criminal record? I'm not sure that it does.


 
Also for some minor offences where a conviction might matter I think I have heard of Judges sometimes not recording a conviction at all in exchange for a donation to the poor box.


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## clareG (28 Aug 2006)

Who measured the distance?


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## miak (28 Aug 2006)

I would definitely go to a lecturer, I knew two law students in college who were arrested for diving into hedges in peoples gardens. Neither of them were particularly studious or had a great attendance record but the lecturer was incredibly helpful. They've seen it all, it goes with the territory of lecturing law to students!


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## JoeB (28 Aug 2006)

*Re: Charged (Intoxicating Liquor Act 2003) alcohol consumption within 100m of offlice*

Unless you intend to plead not guilty and require the Garda to provide evidence that you purchased the drink in the off licence mentioned, that he measured the 100yds and that you actually consumed the drink, you are guilty. The issue of not having actually consumed the drink is interesting, just having an open bottle may not be an offence under that particular section and act, I'm not sure if you can be prosecuted again under different legislation for the same circumstances. I'm pretty sure the guard will say he saw you purchase the drink and that he saw you consume it so you're guilty.

Presumably you are going to plead guilty, after that it's up to the judge, I don't see what any lecturer can for you. Hopefully the prosecuting Garda won't turn up in which case you should request a strike out. If you apply for free legal aid the case will likely be set back for another day, more hassle as you'll likely just plead guilty in the end.

You say the off licence is also being charged, I don't know why. Unless you are underage which is unlikely.


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## CCOVICH (29 Aug 2006)

*Re: Charged (Intoxicating Liquor Act 2003) alcohol consumption within 100m of offlice*



JoeBallantin said:


> You say the off licence is also being charged, I don't know why. Unless you are underage which is unlikely.


 

It's outlined in the Act (linked above)

_(2) A licensee is guilty of an offence if, with the licensee's privity or consent, intoxicating liquor supplied by the licensee in a closed container for consumption off the premises is consumed in a place which is within 100 metres of those premises._


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## liteweight (29 Aug 2006)

This is very hard on the off license! How are they expected to control what goes on 'up the road'?


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## CCOVICH (29 Aug 2006)

Law is the law etc.


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## Superman (29 Aug 2006)

*Re: Charged (Intoxicating Liquor Act 2003) alcohol consumption within 100m of offlice*

"with the licensee's privity or consent"

The Off-licence are unlikely to be successfully prosecuted - as they did not consent to the OP drinking.


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## CCOVICH (29 Aug 2006)

*Re: Charged (Intoxicating Liquor Act 2003) alcohol consumption within 100m of offlice*



Superman said:


> "with the licensee's privity or consent"
> 
> The Off-licence are unlikely to be successfully prosecuted - as they did not consent to the OP drinking.


 

But surely they were privy to such activity?


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## Superman (29 Aug 2006)

*Re: Charged (Intoxicating Liquor Act 2003) alcohol consumption within 100m of offlice*



CCOVICH said:


> But surely they were privy to such activity?



I wouldn't think so - I take privity in the context above to mean that tacit consent (possibly through non-action):

From Dictionary.com:
2.	participation in the knowledge of something private or secret, esp. as implying concurrence or consent.

So if the guy on till in the Off-licence didn't see anyone opening up bottles, and not just because he intentionally looked away - they should get off. 

Also if it were a once off occurence then it would be difficult to prove privity. 

I could be wrong - it's not my field of expertise.


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## CCOVICH (29 Aug 2006)

*Re: Charged (Intoxicating Liquor Act 2003) alcohol consumption within 100m of offlice*



Superman said:


> I could be wrong - it's not my field of expertise.


 

Indeed-nor is it mine.  If the off-licence owner has been charged let him or his solicitor worry about it.............


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## black_pearl (29 Aug 2006)

Thanks everybody. I bit the bullet and asked a lecturer. He assured he that hes heard a lot worse and offered me a reference if I need it! Hes surprised that we're actually being brought to court over this. He believes that we'll get a small fine and s1(1) of the Probation Act will be applied which means its not registered as a conviction so our records will be clean. As far as hes concerned, its no more serious than a parking fine so we have no need to worry as long as we turn up and be contrite. Which is a HUGE relief. 

As regards distance - we were approx 10m from the off-licence so thats really not an issue, we were definately within the 100m. 

Thanks everyone for your comments, it was much appreciated. I've learnt a lesson the hard way! We'll be waiting until we're safely home in future...


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## JoeB (29 Aug 2006)

*Re: Charged (Intoxicating Liquor Act 2003) alcohol consumption within 100m of offlice*

Exactly... as Superman says.... the off licence is very unlikely to have given their consent for the students to drink outside, not were they likely to know that that would happen, I'd be very surprised if they were successfully prosecuted on that charge.

Off licences would have to ask for verbal or written assurances from every customer that they didn't intend to drink within 100 yrds if the above off licence is successfully prosecuted.

The only way the off licence can avoid being prosecuted under that law would be to not sell to anybody... lest they go outside and crack open a bottle, seems a little silly...

I suppose the point is that the off licence may have been 'privy' but only AFTER the event... and what can they do then??? They can't unsell the drink, nor can they interfere with the purchasers lest they be charged themselves with assualt, or something else....

Joe


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## ClubMan (29 Aug 2006)

*Re: Charged (Intoxicating Liquor Act 2003) alcohol consumption within 100m of offlice*



JoeBallantin said:


> Exactly... as Superman says.... the off licence is very unlikely to have given their consent for the students to drink outside, not were they likely to know that that would happen, I'd be very surprised if they were successfully prosecuted on that charge.


A few off licenses that I've been in recently have been displaying signs stating clearly that public consumption of alcohol sold on the premises within 100M (?) of the premises is illegal.


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## JoeB (29 Aug 2006)

*Re: Charged (Intoxicating Liquor Act 2003) alcohol consumption within 100m of offlice*



black_pearl said:


> As regards distance - we were approx 10m from the off-licence so thats really not an issue, we were definately within the 100m.



Well, say you were speeding at 250 kmh in a 50 kmh zone, it's obvious to anybody that you were speeding but unless there is a measurement of your speed that isn't simply someones opinion you can't be charged with speeding, but you will be charged with dangerous driving as that seems to allow a subjective assesment.

Now it's obvious that you were within 100 meters of the off licence but if you were 95 meters away you'd agree that a measurement was necessary... so why not for 10 meters?

This defence would never work... because you're not a big time criminal with a big time lawyer... it may work if anybody has got off this specific charge in  a court of record (not the district court) because of a non measurement which is very unlikely. I say this defence won't work because the judge will likely say 'sure, a measurement isn't required here, it's obvious' but a big time lawyer would say 'why is it not required, can this Garda measure distances with his eyes?' etc etc etc... The act doesn't seem to mention how the 100 meters is determined... It shouldn't go against you to raise this issue but in the real world it likely will....

just plead 'guilty' is my non professional advice...


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## jryan (30 Aug 2006)

Did the guard take your bottle as evidence? If not, how can he prove beyond doubt that you consumed any alcohol?


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## Crugers (30 Aug 2006)

black_pearl said:


> We'll be waiting until we're safely home in future...


As long as you live more than 100M from the off-licence!


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## ClubMan (30 Aug 2006)

*Re: Charged (Intoxicating Liquor Act 2003) alcohol consumption within 100m of offlice*



Crugers said:


> As long as you live more than 100M from the off-licence!


Not unless they live on the street or in a property owned or controlled by the off license - see [broken link removed]:


> *17.*—(1) In this section "place" means—
> 
> (_a_) any premises (other than the licensed premises of a licensee) owned or controlled by the licensee or used with the licensee's permission, and
> 
> ...


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## onekeano (31 Aug 2006)

Have you thought about approaching the Gardai and give him the really aplogetic line and tell him about your fears regarding a criminal conviction. I think they generally are sympathetic to people who were only making an eejit of themselves.

I know I made an official complaint about someone who subsequently had to appear in court and a few weeks beforehand the guard approached me to tell me the sorry tale and that he would be asking for leniency - I was happy enough to allow a donation to the poor box. Unless you were particularly offensive on the night in question I'd imagine you will get a fair pre-trail hearing -) as the cop himself has almost certainly done teh same thing himself in Templemore

Roy


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## black_pearl (24 Apr 2007)

Hi everyone, just a quick update. Thanks for all your help. I indeed went to the Guard in question but he wasn’t budging – apparently he’s known for sticking to the letter of the law.

It finally came to court last week. The prosecuting guard (not the guard who actually stopped us) asked for them to be struck out. The judge pretty much laughed at the whole thing and told one of my friends that if she was going to do it again, at least make sure that shes more than 100m from an off-licence.

I’ve no idea what actually happened to the off-licence but if I find out I’ll pass it on.

Once again, thank you everyone for your help. I’m glad the whole thing is finally over. I can guarantee I’ll never be doing that again!!!


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## nelly (24 Apr 2007)

go find the guard that caught you and explain you are sorry for wasting his time, often these things don't go any further they are just frightners. 
Secondly, i would ask where the summons will be posted? you did give your rental accomodation address? please say you did.


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## Kramer (25 Apr 2007)

nelly said:


> go find the guard that caught you and explain you are sorry for wasting his time, often these things don't go any further they are just frightners.
> Secondly, i would ask where the summons will be posted? you did give your rental accomodation address? please say you did.


nelly, did you actually read any of the responses?


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## vector (28 Apr 2007)

*Re: Charged (Intoxicating Liquor Act 2003) alcohol consumption within 100m of offlice*

(5) Any person who consumes any intoxicating liquor supplied by the licensee in a closed container for consumption off the licensed premises in a place which is within 100 metres of those premises is guilty of an offence and liable on summary conviction to a fine not exceeding €300.

I'm not a solicitor/barrister but I imagine that an intelligent/expensive one could find sone loophole/defence and dissect the wording of the act, here are my ideas.

1. while you had the container open but you did not "consume" any liquid, if some was missing it was due to an error in the manufacturing process

2. you did not but get the container in that particular off licence

3. you did get the container in that off-licence but you and the licencee can agree that you shop-lifted it, and thus it was not "supplied by the licensee" within the meaning of the act? naturally as the shop-lifting angle would also save the licensee a fine he would not pursue you on charges for that

4. find out where the 100m begins, is it from the door of the off-licence? what if it has 2 doors, or if the intoxicating liquor licence also covers a hotel/bar (eg. the next-door franchise) could the 100m be measure from some central point within the complex and thus put you in a clear zone?


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## CCOVICH (28 Apr 2007)

Would 1,2 and 3 invlove lying to either the Gardai or the Courts?


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## vector (28 Apr 2007)

*Re: Charged (Intoxicating Liquor Act 2003) alcohol consumption within 100m of offlice*



CCOVICH said:


> Would 1,2 and 3 invlove lying to either the Gardai or the Courts?



I don't know, they are just ideas, they could all potentially be true


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## CCOVICH (28 Apr 2007)

*Re: Charged (Intoxicating Liquor Act 2003) alcohol consumption within 100m of offlice*



vector said:


> I don't know, they are just ideas, they could all potentially be true




Not based on the facts as outlined by the original poster.


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## JoeB (28 Apr 2007)

*Re: Charged (Intoxicating Liquor Act 2003) alcohol consumption within 100m of offlice*

People aren't required to prosecute themselves, nor are they required to provide a defence by not staying silent... the State is supposed to provide evidence that the crime was committed. The Gardai collect evidence and send it to the DPP and he decides whether a conviction is likely and hence whether to go ahead or not.

So, in my view, the State has to show that the drink was consumed... they may do this by the Guard saying he saw you drink it. That should be sufficent. If the Guard just happened to see you holding an open container (as probably happened) I believe the Guard would swear, under oath, that he actually saw you drink it rather than let the case fall through. In other words I believe the Guards don't worry about 'little' details or 'white' lies. 
You shouldn't be penalized by requiring the State to prove you consumed it but in the real world you probably will be, unfairly in my view. I believe the word 'consumed' means 'consumed' and not merely 'opened'...

The Guards would also have to show you bought the drink in the off licence mentioned, you could keep quite, not admit it, and require them to 'prove' it... how will they do this? Only a receipt or the licensee appearing in court would do the trick, neither of these is likely to happen. Again I believe the Guard will swear he saw you buy it, whether or not this is true. The Guard doesn't want to appear to be a muppet.

And there is also the issue of the 100m, how was it measured??? Don't forget, the State has to 'prove' you were within 100m... if your solicitor required this proof how would the state provide it... The Guard simply standing there saying 'Sure, he was within 100m' is ridiculous in my view and evidence like that wouldn't be used to prosecute drug lords for example.

I have experience of charges in the courts in which I was unfairly treated... I appealed and appealed until the state choose not to contest the case any further... all convictions overturned.... but the judges and Gardai were happy to have convicted me in the first instance even though they knew that they hadn't proved the case against me... they were hoping I would do what many people do and simply accept it.... no way Hose.


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## black_pearl (29 Apr 2007)

Emm... guys, thanks for your responses but its all already over.
The guards asked for it to be struck out.

Thanks anyway!


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## vector (29 Apr 2007)

*Re: Charged (Intoxicating Liquor Act 2003) alcohol consumption within 100m of offlice*

ok the original poster is in the clear now, but to continue the thread anyway...

consider CCTV 

>The Guards would also have to show you bought the drink in the off licence mentioned you could keep quite, not admit it, and require them to 'prove' it... how will they do this? Only a receipt or the licensee appearing in court

the guards could get internal CCTV video of you paying at the counter proving that you "purchased" it in that offlicence

>And there is also the issue of the 100m, how was it measured??? 

an external CCTV still showing the accused standing on spot X, with a bottle to his lips showing the action of "consume", plus a still taken by a garda photographer later of a measuring tape showing spot X to be within 100m of the offlicence


and don't think the offlicence owner wouldn't release his CCTV videos because doing so would make him look bad, he will be releasing CCTV constantly to the guards for various matters; shoplifting, credit card fraud, people passing on street who are suspected of bad activities elsewhere


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