Davitt v Judge Deery & Anor, [2006] IEHC 84 (2006)

Docket Number:2005 495JR
Judge:Murphy J.




Judgment of Mr. Justice Roderick Murphy dated the 20th day of March, 2006.

  1. Application

    The Applicant applied to the court for an order of certiorari quashing an order of the first named respondent of 15th February, 2005, convicting the applicant of an offence under s. 13(2) of the Road Traffic Act, 1994 as amended by s. 23 of the Road Traffic Act, 2002 (the Act).

    Leave had been given by O'Leary J. on 27th June, 2005.

  2. Grounding Affidavit

    The applicant's affidavit, sworn 12th May, 2005, stated that, having been required by a member of the Garda to provide two specimens of his breath, the intoxilyser failed to produce a reading.

    Evidence was given that having been required to provide specimens he failed to do so and was convicted of the offence charged and fined 200 by order of the District Court dated 8th September, 2004.

    He appealed the decision to the Circuit Court on 26th October, 2004. Judge Deery adjourned his decision until 27th October, 2004, and again to 15th February, 2005, when expert evidence was given on the appellant's behalf and on the State's behalf.

    The applicant said that evidence was given by the arresting Garda that he had fully complied with the Garda's instructions and tried with his best efforts to provide a sample but was unable to push the meter beyond a little over half its normal level at three different attempts.

    He said that the failure to register a reading, despite his best efforts to do so, was not a failure to provide a specimen as envisaged by s. 13(1) of the Act of 1994 and did not amount to an offence. He was not aware of any medical condition as to why he was incapable of blowing with enough force to register a reading other than he was a smoker of an average of forty cigarettes a day.

    The first named respondent rejected his submissions and held that he had failed to provide a breath sample and that he must be convicted. The order of the District Court was reaffirmed. He said that he relied on his capacity to drive to a large extent in the course of his work and that the inability to do so would have serious repercussions on his livelihood and ability to provide for his family.

  3. Summary of Grounds on which relief was sought

    The first named respondent erred in law and acted in excess of jurisdiction in construing a failure to provide a reading resultant on an exhalation into the intoxilyzer. The legislation made no provision for such an offence of strict liability with regard to a person's physical incapacity to produce a sufficiently strong exhalation resulting in a reading. The option of providing a blood or urine sample as an alternative to the option of a breath sample was never put to or formally requested of the applicant. The conviction was wrong in law and in breach of the principles of natural and constitutional justice in that it was posited on the liberal interpretation of a penal statutory provision which ought to have been interpreted strictly in the circumstances.

    The fair grounds are more particularly referred to in the decision of the Court at 7.4 below.

  4. Statement of opposition

    The respondents stated that the finding of facts as found by the first respondent on the evidence, upon which he convicted the applicant, were not disclosed in the application for judicial review.

    The first respondent had at all material times acted within his jurisdiction and, if he had erred, the error was made within his jurisdiction.

    The requirement to provide a breath specimen was a requirement to provide breath specimens that could enable the determination, by the instrument into which the specimens were exhaled, of the concentration of alcohol in the breath and the failure to comply was an offence of strict liability, subject to the defence provided for in s. 23(1) of the Act of 1994. Even is this were not so, the defence which the applicant advanced was not a valid defence. He was not charged with or convicted of failing to comply with the instructions of a member of the Gardaí.

    The first respondent neither erred in his construction of the Act nor failed to have regard to the principles of natural and constitutional justice.

    The Act of 1994 does not allow for an option of providing blood or urine samples alternative to a breath specimen otherwise than is set out in section 23(1). There is no requirement or obligation to give an arrested person an option of providing a specimen of blood or urine.

  5. Submissions of the applicant

    The applicant had used his best efforts to provide a sample but was unable to push the meter, which procedure was repeated on two further occasions.

    The net legal question arising is whether s. 13(2), subject to one special statutory defence, had created an absolute offence.

    Counsel submitted that DPP v. Moorehouse (Unreported, Supreme Court, 28th July, 2005) did not decide that, subject to s.23, s. 13(2) created an absolute offence in all circumstances. It was submitted that s. 23 was not the only exception to what would otherwise be an absolute offence. The applicant was not informed of his statutory right to provide a blood or urine sample.

    Counsel for the applicant referred to Director of Public Prosecutions v...

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