4.1 The purpose of this chapter is to provide an update on case law arising out of breath specimen drunk driving prosecutions, which was introduced pursuant to the Road Traffic Act, 1994.
4.2 The High Court decision of Mc Kechnie J, delivered on 14 September 2004 in the case of Ashley McGonnell, Oliver Quinlan and John Purcell v. The Attorney General and the Director of Public Prosecutions remains under appeal. The High Court upheld the constitutionality of the intoxilyzer provisions.
4.3 A number of cases were heard by the High Court which addressed issues arising on foot of the decisions in the cases of Director of Public Prosecutions v. Michael Finn and Director of Public Prosecutions v. Damien McNiece regarding the 20 minute observation period.
The necessity for a 20 minutes observation period:
4.4 The case of Director of Public Prosecutions v. Brendan Walsh, Macken J, 16 March 2005, held that a 20 minute observation period is not a pre-requisite to making a requirement under section 13 of the Road Traffic Act, 1994 to provide a breath specimen.
4.5 The rationale of the Brendan Walsh judgement was approved by Quirke J, in his ex tempore judgement of 27 October 2005 in the case Director of Public Prosecutions v. Patrick Finn wherein he stated that there was no obligation on the prosecution to give evidence of the 20 minute observation period as a necessary ingredient of a section 49 prosecution.
Time over 20 minutes:
4.6 Following the Finn and McNiece judgements challenges were made to any time in excess of 20 minutes which was not accounted for by the prosecution.
4.7 In his ex tempore judgement of 25 July 2005 in the case Director of Public Prosecutions v. Robin Fox, Abbot J held that a seven minute detention beyond the 20 minute period without an explanation was unjustified and stated that in his view anything over 5 minutes would need justification. This case is under appeal.
4.8 The same issue was again considered by the High Court in the case Director of Public Prosecutions v. Tim O'Connor, Quirke J, 14 December 2005 in which it was held that 27 minutes detention could be justified and set out what the District Court needs to look at in deciding on the legality of the detention of an accused person. The Robin Fox case was opened to the High Court in this case.
4.9 In the case of Director of Public Prosecutions (at the suit of Garda Cathal O'Reilly) v. Andrew Barnes - O'Neill J, 18 July 2005, the question of errors in section 17 certificates was considered, the particular error in this case being that the wrong offence had been typed into the intoxilyzer machine at the beginning of the process. It was held that such an error was not fatal to the prosecution and did not detract from the due completion of the statement in question.
4.10 Reference was made to the judgement of O'Flaherty J in Director of Public Prosecutions v. Somers (1999) 1.IR.115 wherein it was stated that "it is impossible to seek perfection at all stages of life and when there is a tiny flaw in the filling out of a document such as this, which flaw is of no significance and cannot possibly work any injustice to an accused and is not in discord with the purposes and objectives of the legislation, then the courts are required to say that such a slip, as we have here, cannot be allowed to bring about what would be a manifest injustice as far as the prosecution of this offence is concerned".
4.11 The case of Director of Public Prosecutions v. John Bourke, Quirke J - 21 October 2005 addresses the issue of the presumption contained in Section 21(1) of the Road Traffic Act 1994 and the standard required to rebut same. In essence, the principle outlined in the case of Director of Public Prosecutions v. Collins (1981) ILRM 447 that mere suggestion is not enough to displace the presumption was reaffirmed.. The facts of the case were that two specimens were recorded as having been provided in the same minute. The defence submitted that it was not possible for the machine to analyse two specimens within that period. Notwithstanding evidence from a scientist from the Medical Bureau of Road Safety that this was in fact possible, the District Judge decided that "there was sufficient rebuttal of the presumed 'prima facie' evidence on the face of the statements supplied pursuant to section 13 of the Act of 1994" and dismissed the charge. The High Court held that on the evidence before the court the charge should not have been dismissed. The submission from the defence was no more than a suggestion and as such was insufficient to rebut the presumption.
4.12 On 28 July 2005, the Supreme Court gave judgement in the case of the Director of Public Prosecutions v. Bridget Moorehouse wherein the defendant had been charged with an offence of failing to provide a breath specimen "in the manner indicated by the said member of the Garda Síochána". Two issues were dealt with in the Supreme Court judgement:
4.13 In short the area of section 49(4) prosecutions continues to be the subject of judicial scrutiny in both the High Court and the Supreme Court.