4.1 The purpose of this chapter is to provide an update on caselaw arising out of drink driving prosecutions during 2007.
4.2 Colm Fitzpatrick v. Director of Public Prosecutions - O’Neill J. (20 November 2007). This case establishes that the section 17 Certificate must be handed into Court if the prosecution seek to rely on the presumption contained in section 21 Road Traffic Act 1994. The section 17 Certificate indicates the concentration of alcohol in a breath specimen. The case also touches on the question of the admissibility of secondary evidence and states as follows:
“Where the prosecution in a case such as this wish to prove the content of the statement produced by an Intoxilyzer machine pursuant to section 17(2) but do not produce the statement itself, in my view they should not be permitted to give secondary evidence of the content of that statement unless it is established by evidence that the original statement has been lost or destroyed or for some other reason, it is physically or legally impossible to produce the original.”
4.3 This allows for the possibility of the introduction of a copy section 17 Certificate pursuant to section 30 of the Criminal Evidence Act 1992 in certain circumstances.
4.4 Director of Public Prosecutions v. Ryan Crumley - Feeney J. (17 December 2007). This was an appeal by way of case stated which dealt with the issue of the necessity for the 20 minute observation period. The question asked was as follows:
“In a prosecution for an offence contrary to section 49(4) and (6) of the Road Traffic Act 1961 (as inserted by section 10 of the Road Traffic Act 1994, as amended by section 23 of the Road Traffic Act 2002), is it necessary for the prosecution to prove that the arrested person had been observed continuously for a period of 20 minutes prior to such a person being required to provide two specimens of his breath pursuant to section 13(1)(a) of the Road Traffic Act 1994?”
The answer was no. There is no written judgement.
4.5 Director of Public Prosecutions v. Shane Canavan - Birmingham J. (1 August 2007). This case follows a Supreme Court decision in the case of the Director of Public Prosecutions v. McGarrigle. The Court held that it was not necessary for the prosecution to prove that the Garda had told the accused the penalties which would follow if he failed or refused to provide a specimen.
4.6 Director of Public Prosecutions v. John Condon - Hedigan J (12 October 2007). In this case, it was held that proof of a 20 minute controlled observation period was not a necessary proof in a case of failure or refusal to give a specimen of breath.
4.7 Director of Public Prosecutions v. Sean Malone - Hedigan J. (15 October 2007). The question asked in the Case Stated was reformulated by the High Court Judge as follows:
“In a prosecution under section 13(2) where the accused is found to have refused [to give a specimen of breath], is it a necessary proof that the Gardaí have gone through all the preparatory steps up to where the display on the Lion Intoxilyzer showed the message “give breath specimen, blow to fill space?”
4.8 Hedigan J. held that, where the Court comes to the conclusion on the evidence that the accused has refused to comply with the requirement under section 13(1)(a), it would be overly formalistic for the Gardaí to proceed through the first 11 steps and present the intoxilyzer to the accused where it was clear he was not going to comply.
4.9 Director of Public Prosecutions v. Seamus Deegan - Dunne J. (26 March 2007). This case concerns a sample of urine, which was analysed by the Medical Bureau of Road Safety for the concentration of the presence of alcohol and also for the presence of a drug or drugs. This was held to be in order.
There is no written judgement.
4.10 Director of Public Prosecutions v. Shelia O’Sullivan - Herbert J (31 July 2007). The issue in this case was whether a Garda acted unlawfully by entering onto a defendant’s driveway without a warrant, and opening her car door. The answer was no, the Court noting that the defendant had not locked her car door nor tried to stop the Gardaí from opening it nor criticised them for doing so.
4.11 David O’Neill v. Judge Patrick McCarton & Director of Public Prosecutions - Charleton J. (1 August 2007). In this case the defence had questioned the amount of time it had taken the Doctor to arrive at the station so that the requirement for a blood or urine specimen could be made of the defendant. It was one hour, which the Court held, was good service in the real world.
4.12 Director of Public Prosecutions v. Ronald Roper - Birmingham J. (30 July 2007). The Court held that the District Court Judge was incorrect in dismissing the charges against the accused on the basis he had not been processed under the Treatment of Persons in Custody Regulations 1987 without unnecessary delay, in a situation where the prosecution was unable to account for up to 17 minutes of the detention.
4.13 Director of Public Prosecutions v. Judge O’Leary and various respondents, Murphy J. (6 December 2007). At issue in this case were a number of District Court cases which had been adjourned pending the constitutional challenge to the Intoxilyzer machine. It was held that there was no blameworthy delay by the prosecution.