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High Court Decision to Affect a Significant Number of Drink Driving Cases

By: Pat Mullins | Posted on: 01 Oct 2015

High Court Decision to Affect a Significant Number of Drink Driving Cases

 

 

HIGH COURT DECISION TO AFFECT A SIGNIFICANT NUMBER OF DRINK DRIVING CASES

 

A recent decision of the High Court, will have a serious knock on effect, in relation to a significant number of pending prosecutions, before the District Court, under Section 4(4)(a) and (5) of the Road Traffic Act, 2010.

 

The decision is relevant only to prosecutions, where the alcohol concentration was measured by taking a concentration of alcohol in the breath, and does not apply to any prosecutions, which relate to the concentration of alcohol in urine, or the concentration of alcohol in blood. 

 

The relevant case is the case of DPP –v- Mihai Avadenei.

 

The Judgment was delivered by Mr. Justice Noonan, in the High Court, on the 21st of September, 2015.

 

The case arose from a consultative case stated, by District Judge Colin Gibbons, whereby the District Court requested clarification of issues, which had been raised in the District Court prosecution, for answer by the High Court. 

 

The accused was charged with drink driving, whereby a breath test recorded that he had a concentration of 54 micrograms of alcohol per 100 millilitres of breath, in excess of the minimum allowable amount of 22 micrograms. 

 

The alleged offence occurred on the 21st of April, 2014, at Ellis Quay in Dublin. 

 

The matter proceeded before the District Judge on the 2nd of July, 2014.  The accused was detected at a speed checkpoint.  The Garda concerned got a strong smell of alcohol from the accused’s breath, and a demand was made under Section 9 of the Road Traffic Act, 2010, that the accused provided a specimen of his breath, to indicate the presence of alcohol.

 

The accused provided a breath specimen, and the result of the test was “Fail”. 

 

The relevant Garda then arrested the accused, and he was conveyed to Store Street Garda Station. 

 

The accused was then asked to provide a sample of breath, into the evidential breath testing apparatus.  The accused provided a specimen.

 

The machine duly produced a document, which outlined a concentration of 54 micrograms per 100 millilitres of breath, in the specimen produced by the accused.  The print out was signed by both the accused, and the Garda concerned, and was then tendered into evidence under Section 13 of the Road Traffic Act, 2010. 

 

The prosecuting Garda confirmed that the only document, which was produced from the machine, was in English.  He confirmed that the machine was capable of producing the print out in Irish as well.

 

At the conclusion of the District Court case, the accused’s solicitor submitted that there was no case to answer, on behalf of the accused, on the grounds that the document was not a duly completed statement, within the meaning of Section 13 of the Road Traffic Act, 2010, as it did not comply with the requirements of the Road Traffic Act, 2010, (S.13)(Prescribed Form and Manner of Statements) Regulations, 2011, (S.I. 541/2011), which provide that the relevant statement should be produced in both the English and Irish languages. 

 

The District Judge then referred the matter to the High Court, for a determination as to whether he was entitled to hold that the Certificate was not “duly completed”. 

 

Judge Noonan then analysed the relevant precedent case law which exists, in the area of drink driving.

 

Judge Noonan placed emphasis on a decision of the Supreme Court, in the case of DPP –v- Kenny, to suggest that where the relevant Statute mandates the adoption of a particular procedure, a failure to adhere to that procedure will deprive the relevant certificate of any evidential value, irrespective of whether or not the accused is being in any way misled, or has suffered any prejudice, as a result. 

 

Judge Noonan went on to say that the language of Section 13(2) of the 2010, Act was mandatory.  He held that the Gardai must supply the two statements.  He held that they must be in the prescribed form, and must be duly completed, in the prescribed manner. 

 

Judge Noonan concluded that the Regulations made it mandatory for the prosecution to produce the document, in both the Irish and English language, and that the failure to reproduce an entire half of the prescribed form, could not be regarded as a mere “deviation” from the form prescribed.

 

He therefore concluded that the printout from the intoxiliser machine, relied upon by the prosecution in this case, did not comply with the requirements of Section 13(2) of the 2010 Act, and therefore, did not constitute evidence at all, and cannot be admitted into evidence by the Court.

 

Judge Noonan, in answer to the question posed by the District Judge, confirmed that the document in issue was neither in a prescribed form, or duly completed, within the meaning of Section 13(2) of the 2010, Act, or Regulation 3 of the 2011 Regulations. 

 

The effect of this decision, is that in any prosecution for drink driving, in relation to concentration of alcohol in the breath, where the intoxiliser machine has been used in a Garda Station, to produce a printout of the concentration of alcohol, then in such circumstances, unless that printout has been produced in both the Irish language, and the English language, any prosecutions pending, at the time of the Judgment, are doomed to fail, by virtue of the inability of the prosecutors to admit the document into evidence, by reason of the fact that the High Court has determined that the document is not in the prescribed form, and therefore not admissible in evidence. 

 

There have been hundreds of cases adjourned, pending this particular ruling, and it is clear that a substantial number of prosecutions will now be dismissed, as a result of this High Court determination.

 

The Government has, since the publication of this Judgment, moved quickly to amend legislation to prevent this High Court Judgment having any effect on future prosecutions, arising after the amendment to the legislation, where the intoxiliser machine has been used to provide a printout of the concentration of alcohol in the breath. 

 

 

Patrick Mullins Solicitor    

Partner    

BDM Boylan Solicitors    

Clarke’s Bridge House    

Hanover Street    

Cork    

Ph: 021 4313333    

pmullins@bdmboylan.ie    

www.bdmboylan.ie