Director of Public Prosecutions -v- Stack & anor, [2016] IEHC 159 (2016)

Docket Number:2015 522 SS & 2015 624 SS
Party Name:Director of Public Prosecutions, Stack & anor
 
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THE HIGH COURT

CONSULTATIVE CASE STATED Record Nos.2015/522 SS, 2015/624 SS

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL (PROVISIONS) ACT 1961 (AS AMENDED)

(1) DIRECTOR OF PUBLIC PROSECUTIONS ProsecutorAND

RONAN STACKAccused (2) DIRECTOR OF PUBLIC PROSECUTIONS ProsecutorAND

JOHN FOLEYAccused

JUDGMENT of Mr Justice Max Barrett delivered on 5th April, 2016.

Part 1

Overview

  1. For some years now it has been the practice of the Gardaí to precede a breath-alcohol test with a 20-minute observation period. The practical object of this standard observation period, the court understands, is to ensure that there is a sufficient period before the breath-test within which an arrested person does not introduce alcohol to his mouth by drinking, or re-introduce alcohol to his mouth by vomiting. Avoiding such a visitation or re-visitation of alcohol to the mouth during the 20-minute period is considered necessary to ensure that the breath test which follows that period is a true breath test and not contaminated by the presence of alcohol in the mouth. At least it was considered necessary when the Gardaí used the ‘Intoxilyser’, a particular brand of what is popularly known as a ‘breathalyser’. The two cases stated for the court and considered hereafter are essentially concerned with whether this 20-minute precautionary period continues to be necessary and lawful now that Gardaí use a type of breathalyser known as the ‘Evidenzer’.

    Part 2

    The Case of Mr Stack

  2. Following the arrest of Mr Stack on 4th August, 2013, pursuant to s.4(8) of the Road Traffic Act, 2010, he was brought to Bandon Garda Station at 9.25a.m. There he was informed by Sergeant Thomas Lehane that he would be assessed by use of an Evidenzer and that he would be observed for a period of twenty minutes beforehand. A demand was subsequently made of Mr Stack at 9.47a.m., pursuant to s.12(1)(a) of the Road Traffic Act 2010, to provide two specimens of his breath by exhaling into anEvidenzer. Mr Stack complied with this requirement and provided two specimens of his breath at 9.50a.m. and 9.53a.m. The result of the analysis was 33ìg of alcohol per 100ml of breath, a reading in excess of that allowed under the road traffic legislation.

  3. At Mr Stack’s later trial for what is commonly referred to as ‘drunk driving’, Sergeant Lehane gave evidence that he was a trained operator of the Evidenzer breathalyser and that he had undergone an Intoxilyser training course and a later Evidenzer ‘conversion course’, both arranged by the Medical Bureau of Road Safety. (This is the body with responsibility under the Road Traffic Acts for, inter alia, the approval and supply of breathalysers). Sergeant Lehane indicated that he was instructed at the later Evidenzer course that a 20-minute observation period was necessary to eliminate the presence of mouth alcohol and to give an accurate reading of the machine. Under cross-examination, it was put to Sergeant Lehane that the manufacturer guidelines for the Evidenzer (unlike those, it seems, for the Intoxilyser) do not include a requirement for a 20-minute observation period. Sergeant Lehane reiterated that the continuing need for a 20-minute observation period was a matter that had been instilled in him during the conversion course.

  4. Arising from the foregoing, Judge McNulty of the Macroom District Court has referred the following question to the court:

    “In circumstances where it is acknowledged that the Manufacturer’s Manual for guidance of the Operator of the Evidenzer machine for breath testing does not require an observation period of twenty minutes prior to a test, and evidence has been heard that the Accused was detained for a period of twenty minutes prior to the formal requirement being communicated to him, pursuant to Section 12(1)(a) of the Road Traffic Act 2010 for the provision of breath specimens, did this constitute an unnecessary and unreasonable prolongation of his detention, thus rendering his detention unlawful and leaving the evidence, obtained by way of breath sample provided during such detention, tainted and inadmissible evidence against the Accused?”

    Part 3

    The Case of Mr Foley

  5. Following the arrest of Mr Foley on 27th October, 2014, pursuant to s.4(8) of the Road Traffic Act, 2010, he was brought to Bandon Garda Station at 3.32a.m. There he was informed by Garda Kieran Hayes that he would be assessed by use of an Evidenzer and that he would be observed for a period of twenty minutes beforehand. A demand was subsequently made of Mr Foley at 4.15a.m., pursuant to s.12(1)(a) of the Road Traffic Act 2010 to provide two specimens of his breath by exhaling into an Evidenzer. Mr Foley complied with this requirement and provided two specimens of his breath at 4.18a.m. and 4.21a.m. respectively. The result of the analysis was 66ìg of alcohol per 100ml of breath, a reading in excess of that allowed under the road traffic legislation.

  6. At Mr Stack’s later trial for what is commonly referred to as ‘drunk driving’, Garda Hayes gave evidence that he was a trained operator of the Evidenzer breathalyser. Garda Hayes said that he had undergone an Intoxilyser training course and a later Evidenzer course, both arranged by the Medical Bureau of Road Safety. Garda Hayes indicated that he was instructed at the later Evidenzer course that it was best international practice that a 20-minute observation period should precede the administration of a breath-test with the Evidenzer.Under cross-examination, it was put to Garda Hayes that the manufacturer guidelines for the Evidenzer do not include a requirement for a 20-minute observation period. Sergeant Lehane reiterated that the continuing need for a 20-minute observation period was a matter that had been instilled in him during the Evidenzer course. It was also put to Garda Hayes that the Evidenzer is specifically manufactured with five filters to eliminate any possibility of mouth alcohol contamination. To this, Garda Hayes reiterated that the continuing need for the 20-minute observation period had been instilled in him as part of his Evidenzer training. When it was then put to Garda Hayes that the Evidenzer had been designed by its manufacturer with the intention of eliminating or reducing the need for the 20-minute observation period, Garda Hayes indicated that he was not competent to answer such specific technical questions.

  7. Arising from the foregoing Judge McNulty of the Macroom District Court has referred to the court effectively the same question as is mentioned above in the context of Mr Stack’s case.

    Part 4

    Some Applicable Law

    i. A Harmonious Quintet.

  8. The court has been...

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