4.1 The purpose of this chapter is to provide an update on case law arising out of breath specimen drunk driving prosecutions during 2006.
4.2 In our Annual Report 2005 we referred to the case of Ashley McGonnell, Oliver Quinlan and John Purcell v. Attorney General and Director of Public Prosecutions in which the High Court upheld the constitutionality of the intoxilyzer provisions. The case was appealed to the Supreme Court. On 28 November 2006 the Supreme Court delivered judgement dismissing the appeals by the plaintiffs. Murray CJ stated that "in all the circumstances, in particular conclusions that the statutory procedures for the measuring/providing of breath/alcohol levels are not disproportionate or an impermissible interference with an accused's right to a fair trial, the court dismisses the appeal".
4.3 A number of cases were outlined in our Annual Report 2005 addressing issues that had arisen in relation to the 20 minute observation period in evidential breath testing cases. A further issue was addressed in the case of Director of Public Prosecutions (at the suit of Garda Shane Curran) v. Garrett Foley, O Neill J, unreported, High Court, 31 January 2006, when it was held that "no additional caution or warning is required at the commencement of the 20 minute period so as to render it lawful". The judgement goes on to state that "the information given and cautions given at the time of arrest and subsequently by the member in charge when the alleged offender is brought to the Garda station, if sufficient to render lawful the overall detention, will also be sufficient to render lawful the detention during the period of twenty minute observation".
4.4 Section 21 of the Road Traffic Act, 1994 provides that the certificate produced by the intoxyliser shall, until the contrary is shown, be sufficient evidence of the facts stated therein and of compliance by the Gardaí with the requirements of the Act. In the case of Daniel Ruttledge v. District Judge Patrick Clyne and Director of Public Prosecutions, Dunne J, unreported, High Court, 7 April 2006, the question of errors in section 17 certificates was considered. The particular error in that case was that the section 17 certificate referred to the name of the Garda instead of that of the applicant as the person providing the breath specimen. Following the rationale of the Andrew Barnes case, it was held "that an error of the kind that had been made on the certificate is one which was of such an obvious or trivial or inconsequential nature that it could not have given rise to any confusion or misleading of the accused or indeed imposed any prejudice on him or any injustice".
4.5 In the case of John Davitt v. Judge Deery and Director of Public Prosecutions, Murphy J, unreported, High Court, 20 March 2006, the offence of failing to provide a breath specimen was explored. The Supreme Court decision in the case of Director of Public Prosecutions v. Bridget Moorehouse was considered and it was held that Moorehouse did decide that, subject to section 23, section 13(2) created an absolute offence in all the circumstances. The Court went on to say that "it would seem clear that fault is not a requirement in order to establish that offence. As it was put by Geoghegan J. in Doyle, non compliance with the requirement was enough".
4.6 The case of Director of Public Prosecutions (at the suit of Garda James King) v. Christopher Tallon, MacMenamin J, unreported, High Court, 28 July 2006, considered the question of the District Court's power to amend refusal/failure summonses 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 An Garda Síochána", the Supreme Court having decided in the Bridget Moorehouse case that a charge so phrased was not known to the law. The High Court held that the proposed amendment was "a matter for the discretion of the District Judge which discretion should be exercised in accordance with the approach set out by Finlay P in The State (Duggan) v. Evans, and Lynch J in Director of Public Prosecutions v. Corbett".
4.7 The case of Director of Public Prosecutions v. Fergal Warren, Dunne J, unreported, High Court, 18 May 2006, dealt with the issue of the detention of a suspect by an off duty Garda prior to his arrest for drunk driving by another member of the Gardaí who was on duty. The High Court held that the detention by the off duty Garda was an arrest and that it was lawful. In relation to the question of "arrest upon arrest", reference was made to the judgement of MacMenamin J in the case of O'Mahony v. Ballagh (2002) 2IR 410, wherein it was stated that "the key issue in relation to re-arrest was whether there was evidence of abuse of process" and on the facts of the Warren case it was held that there was not and therefore the subsequent arrest was a valid arrest.
4.8 The case of Director of Public Prosecutions (at the suit of Garda Garry Hallinan) v. Donal Milmo Penny, Dunne J, unreported, High Court, 27 July 2006, considered the situation wherein a Garda, having formed the opinion necessary to justify an arrest for a section 49 offence, asks the driver to pull in to the side of the road and whether this was an instruction to commit an offence which tainted the arrest or vitiated the section 49 opinion formed. The High Court held that "as all of the necessary ingredients were present for a valid arrest and it has never been suggested otherwise, then, notwithstanding that the Garda required the defendant to continue driving a short distance, nothing occurred which had the effect of prejudicing the defendant in any way".
4.9 The case of Director of Public Prosecutions v. Sean Kenny, Herbert J, unreported, High Court, 13 October 2006, considered the question of the proper exercise of the discretion to convict of a section 50 (drunk in charge) offence where a defendant is charged with an offence contrary to section 49 (drunken driving). The Act provides that a person charged with a section 49 offence may be convicted of a section 50 offence. The District Judge acquitted of the section 49 offence on a submission that there was no evidence as to time of driving. The District Judge refused to convict of the section 50 offence stating that a prosecution had been brought for a section 49 offence. The High Court held that "there is nothing to indicate that the person upon whom the particular discretion is conferred is under an obligation to exercise it in a particular way, but it must be exercised".
4.10 In the case of the Director of Public Prosecutions (at the suit of Garda Richard T O'Connor) v. Brendan Cronin, De Valera J, unreported, High Court, 13 November 2006, it was held that the District Judge was wrong to dismiss the section 49 charge where the Garda gave evidence that the accused was "incapable of exercising" rather than "incapable of having" proper control of the vehicle. Judge De Valera stated "the difference in meaning between the use of the words "exercising" and "having" in the context of this section, and also in the context of the circumstances of the offence and the subsequent arrest, was non existent".
4.11 The case John Kearney v. Director of Public Prosecutions, Dunne J, unreported, High Court, 21 December 2006 considered the situation wherein the accused person was not told of the reason for his arrest at the time of arrest in circumstances where he was resisting arrest and had to be physically restrained. The High Court held that "it was not unreasonable for a member of the Gardaí to concentrate on the restraint of an arrested person rather than explaining the reason for the arrest there and then in circumstances where an accused person has, by his own conduct, brought about a situation in which the Gardaí are required to use their energies to restrain him".
4.12 Random breath testing was introduced by section 4 of the Road Traffic Act 2006. To date, there is no reported case law relating to the introduction of this legislation. An issue, which arose in relation to power of arrest following a refusal of a section 4 requirement, has been addressed in section 1 of the Road Traffic and Transport Act 2006.
4.13 Section 5 of the Road Traffic Act 2006 will allow for a person arrested for drink driving with a reading in the lowest category, to accept, firstly, a fixed charge fine, and secondly, a disqualification order which would be equal to the minimum period which he/she would face if convicted in court. This provision is not yet in force.