Connolly v Salinger

• Jurisdiction: Ireland
• Judge: GRIGGIN J.
• Judgment Date: 26 May 1982
• Neutral Citation: 1982 WJSC-SC 1853
• Court: Supreme Court
• Date: 26 May 1982

1982 WJSC-SC 1853

THE SUPREME COURT

STATE SIDE

No. 374 S.S./1980

No. 10/1981

CONNOLLY v. SALINGER

BETWEEN/

GARDA PAUL CONNOLLY

Complainant

and

MARTIN SALINGER

Defendant

1 JUDGMENT delivered on the 26th day of May 1982 by GRIGGIN J.

2 On the 7th of October 1979, the above-named Martin Salinger ("the defendant"),who was then the driver of a motor car, was arrested at New Row South in the City of Dublin, pursuant to the provisions of s. 49(6) of the Road Traffic Act, 1961, as inserted by s. 10 of the Road Traffic (Amendment) Act, 1978.The arresting Garda was of opinion that the defendant was committing or had committed an offence under s.49,which prohibits driving a vehicle in a public place whilst under the influence of an intoxicant, or while there is present in old body & quantity of alcchol the concentration of which in his blood or urine exceed the prescribed limit. The defendant was taken to Kevin street garde station, and was there informed by the sergeant into whose custody he was given that he was required, pursuant to s.13 of the Act of 1978, either to permit Dr.Patton, as the designated registered medical practitioner, to take from him a specimen of his blood, or, at his (the defendant') option, to provide for Dr Patton a specimen of his urine. He was also informed that if he failed or refused to provide either a sample of blood, or, at his option, a sample of urine, that he would be "committing an offence".

3 The defendant said that he would provide the doctor with a specimen of his urine. He was given a container for that purpose. After some minutes, he said that he was unable to provide a specimen of his urine, and told the sergeant and Dr.patton that he "would give blood", Dr.patton then took a specimen of blood from the defendant. On analysis, this specimen of his blood was found to contain a concentration of alcohol in excess of the prescribed limit.

4 The defendant was accordingly prosecuted in the District Court under s.49. At the hearing the District Justice, having heard the evidence, expressed concern (1) as to whether in the circumstance aforesaid the specimen of blood taken by Dr.Patton was taken in compliance with s.13 of the 1978 Act; (2) as to whether when a person opted to provide a specimen of urine, and though making a genuine attempt was unable to do so, the section permitted a specimen of blood to be taken thereafter; and (3) if so, whether before the specimen of blood was taken, such person ought to have been cautioned as to the consequences of its being taken. In the event, the District Justice decided to state a consultative case pursuant to s.52 of the Courts (supplemental provisions) Act, 1961, and referred the following questions of law to the High Court for determination:

5 2 1.If a person opts to provide a specimen of urine instead of a specimen of blood in response to a requirement of a member of the Garda Siochana under section 13(1)(b)of the Road Traffic (Amendent) Act, 1978, makes every effort to pass urine but is unable to do so, Owing to a reason over which he has no control and is genuine in his effort and is thereby unable to comply with such requirement is he guilty of the offence of "failing" to comply with such requirement?

6 3 2.In view of the response of the Defendant to the said requirement made of him under section 13(1)(b),as outlined above, was the blood sample taken from the Defendant a specimen of blood taken under part III of the said act for the purpose of section 21 and section 22 of the Road Traffic (Amendment) Act, 1978.

7 4 3.Whether a defendant who has failed to give a urine sample in the circumstances set out above but who offers to give a blood sample...