Road Traffic Act 2010

35.

Fixed charge notice — service.

35.— (1) Where a member of the Garda Síochána has reasonable grounds for believing that a fixed charge offence is being or has been committed by a person—

( a) if the member identifies the person, F61 [ the member shall serve ], or cause to be served, personally or by post, on the person a fixed charge notice, or

( b) if the member does not identify the person and the offence involves the use of a mechanically propelled vehicle, F61 [ the member shall serve ], or cause to be served, personally or by post, on the registered owner of the vehicle a fixed charge notice.

(2) A prosecution in respect of a fixed charge offence shall not be instituted unless a fixed charge notice in respect of the alleged offence has been served on the person concerned under this section and the person fails to pay the fixed charge in accordance with the notice.

(3) Where a fixed charge notice is being served on a person identified under subsection (1) (a) or on a registered owner where the person is not identified under subsection (1) (b) , it may be served—

( a) in the case of personal service—

(i) where the person is identified, by—

(I) delivering it to the person, or

(II) leaving it at the address—

(A) at which the person ordinarily resides,

(B) which, at the time of the alleged offence, the person gave to the member referred to in subsection (1) , or

(C) at which the vehicle is registered, where the person is the registered owner of the vehicle at the time of the alleged offence,

or

(ii) where the person is not identified, by delivering it or leaving it at the address at which the vehicle is registered at the time of the alleged offence,

or

( b) in the case of postal service—

(i) where the person is identified, by posting it to the address (inside or outside the State)—

(I) at which the person ordinarily resides,

(II) which, at the time of the alleged offence, the person gave to the member referred to in F62 [ subsection (1) ] , or

(III) at which the vehicle is registered, where the person is the registered owner of the vehicle at the time of the alleged offence,

or

(ii) where the person is not identified, by posting it to the address at which the vehicle is registered at the time of the alleged offence.

(4) In a case referred to in subsection (1), if the offence concerned is not a penalty point offence—

( a) the references in that subsection to a member of the Garda Síochána shall be construed as including references to a traffic warden, and

( b) paragraph (b) of that subsection shall be read as if “or shall affix such a notice to the vehicle” were inserted after “fixed charge notice”.

F63 [ (5) In a case referred to in subsection (1) the references in that subsection to a member of the Garda S í och á na (other than in paragraph (b)) are to be read as including references

(a) if the offence is an offence referred to in F64 [ section 34(2)(c) or section 34(2)(d) ] , to a transport officer appointed under section 15 (inserted by section 117 of the Dublin Transport Authority Act 2008 ) of the Road Transport Act 1986 , or

(b) if the offence is an offence referred to in F65 [ section 34(2)(e) ] , to an authorised person appointed under section 40 of the Taxi Regulation Act 2013. ]

(6) Where—

( a) a fixed charge notice is served on the registered owner of a mechanically propelled vehicle or affixed to such a vehicle F66 [ under subsection (1)(b) ] , and

( b) the registered owner of the vehicle was not driving or otherwise using the vehicle, at the time of the commission of the alleged offence to which the notice relates,

the registered owner shall—

(i) not later than 28 days after the date of the notice, give or send to a member of the Garda Síochána or a traffic warden at the Garda Síochána station or other place specified in the notice a document in the prescribed form signed by the registered owner and stating the name and address of the person who was driving or otherwise using the vehicle at the time of such commission, and

(ii) give or send to a member of the Garda Síochána or a traffic warden within such period as may be specified by the member or warden at the Garda Síochána station or other place specified in the notice such other information within his or her knowledge or procurement as the member or warden may reasonably request for the purpose of identifying, and establishing the whereabouts of, the person referred to in subparagraph (i) .

(7) Where a registered owner is giving or sending in accordance with subsection (6)(b)(i) the name and address of the person who was driving or otherwise using the vehicle concerned, the onus is on the registered owner to be able to show proof of giving or sending the name and address. In a prosecution for an offence under section 40(2) in the absence of such proof it shall be presumed, until the contrary is shown, that no such name or address was so given or sent.

(8) For the purposes of subsection (6)(b) where the registered owner of the vehicle concerned is not an individual, the obligation under that provision shall be discharged by a person acting on behalf of or employed by the owner.

(9) The Commissioner shall, not later than 28 days after a document referred to in subsection (6) containing the name and address of the person who was driving or otherwise using the vehicle concerned at the time of the commission of the alleged offence concerned is given or sent to a member of the Garda Síochána or a traffic warden, cause a notice under this section to be served, personally or by post, on the person.

Annotations:

Amendments:

F61

Substituted (1.06.2017) by Road Traffic Act 2016 (21/2016), s. 24(a), S.I. No. 242 of 2017.

F62

Substituted (1.06.2017) by Road Traffic Act 2016 (21/2016), s. 24(b), S.I. No. 242 of 2017.

F63

Substituted (6.04.2014) by Taxi Regulation Act 2013 (37/2013), s. 77(1)(d), S.I. No. 163 of 2014.

F64

Substituted (1.06.2017) by Road Traffic Act 2016 (21/2016), s. 24(c), S.I. No. 242 of 2017.

F65

Substituted (1.06.2017) by Road Traffic Act 2016 (21/2016), s. 24(d), S.I. No. 242 of 2017.

F66

Inserted (1.06.2017) by Road Traffic Act 2016 (21/2016), s. 24(e), S.I. No. 242 of 2017.

F67

Substituted by Road Traffic Act 2016 (21/2016), s. 36(a)(i), not commenced as of date of revision.

F68

Substituted by Road Traffic Act 2016 (21/2016), s. 36(a)(ii), not commenced as of date of revision.

Modifications (not altering text):

C10

Prospective affecting provision: subss.(2) and (3)(a)(ii) substituted by Road Traffic Act 2016 (21/2016), s. 36(a), not commenced as of date of revision.

35.— ...

F67 [ (2) A prosecution in respect of a fixed charge offence shall not be instituted unless a fixed charge notice in respect of the alleged offence has been served on the person concerned under this section and the person fails to pay the appropriate payment of the fixed charge in accordance with the notice at the appropriate time specified in the notice in relation to the payment. ]

(3) Where a fixed charge notice is being served on a person identified under subsection (1) (a) or on a registered owner where the person is not identified under subsection (1) (b) , it may be served—

( a) in the case of personal service—

...

F68 [ (ii) where the person is not identified and the offence involves the use of a mechanically propelled vehicle, by delivering it or leaving it at the address at which the vehicle is registered at the time of the alleged offence, ]

...

C11

Prospective affecting provision: application of section restricted by Road Traffic Act 1961 (24/1961), s. 101B, as substituted by Vehicle Clamping Act 2015 (13/2015), s. 32; amending section prospectively commenced (1.10.2017) by S.I. No. 211 of 2017.

Immobilisation, removal etc. of unlawfully parked vehicles.

[101B. ...

(6) Where an immobilisation device is fixed to a vehicle in accordance with this section a fixed charge notice under section 103 of this Act or section 35 of the Road Traffic Act 2010 need not be served on a person, or affixed to the vehicle concerned, in respect of the contravention unless it is contemplated that proceedings for an offence in relation to the contravention might be brought.

... ]

Editorial Notes:

E47

Power pursuant to subs. (6) exercised (1.06.2017) by Road Traffic Act 2010 (Section 35(6)) (Prescribed Document) Regulations 2017 (S.I. No. 245 of 2017), in effect as per reg. 2.