Director of Public Prosecutions v Tobin
| Jurisdiction | Ireland |
| Judge | Mr. Justice Alexander Owens |
| Judgment Date | 31 March 2023 |
| Neutral Citation | [2023] IEHC 260 |
| Docket Number | [2021 No. 1803 SS] |
| Court | High Court |
In the Matter of Section 2 of the Summary Jurisdiction Act, 1857, as Extended BT Section 51 of the Courts (Supplemental Provisions) Act, 1961.
[2023] IEHC 260
[2021 No. 1803 SS]
THE HIGH COURT
JUDICIAL REVIEW
Crime & sentencing – Road traffic – Driving under influence of intoxicant – Appeal by way of case stated.
Facts: The appellant had been convicted having driven a mechanically propelled vehicle in a public place while being under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle, contrary to s.4(1) of the Road Traffic Act 2010. He had failed to provide a breath sample at the Garda station, and was notified of his right to give a blood or urine sample. An urine sample was provided which later showed the presence of a cannabinoid. This result was taken into account by the District Judge. A case was stated om whether a member of the Garda Síochána is obliged to provide detail of potential ramifications of exercise of a choice to give a urine sample in lieu of permitting the taking of a blood sample in response to a requirement made by that member under s.12(1)(b) of the 2010 Act. Amongst the questions was question “c” which stated “Was I correct in law to convict the appellant?”
Held by the Court, that the Court was persuaded that the answer would be yes if question “c” was limited to the issues stated in questions “a” and “b.” However, if “c” related to whether the District Court Judge correctly concluded that there was sufficient evidence to convict Joseph Tobin, this depends on whether he was of the view that the evidence other than that contained in the Bureau certificate relating to “CANNABOIDS CLASS” drugs persuaded him of the guilt of Joseph Tobin. If the District Judge was not of that view, the proper verdict was an acquittal
JUDGMENT of The Hon. Mr. Justice Alexander Owens delivered on the 31st day of March 2023
This is an appeal by way of case stated from a determination of the District Court. Joseph Tobin was convicted on 3 December 2020 of having driven a mechanically propelled vehicle on 21 March 2018 in a public place while being under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle, contrary to s.4(1) of the Road Traffic Act 2010 (the 2010 Act).
On 21 March 2018 Garda Daniel Lyons saw Joseph Tobin driving a car in an erratic manner in Celbridge, County Kildare. He appeared to put on his seatbelt and to put something down beside a seat. He drove the car into a supermarket car park and got out. He was unsteady on his feet. His speech was slurred. His eyes were bleary. A beer can was observed between the front seats.
Garda Lyons formed the view that Joseph Tobin had consumed an intoxicant and required him to provide a preliminary breath specimen which was positive for alcohol. Garda Lyons did not require Joseph Tobin to provide a specimen of oral fluid for drugs testing. He then arrested Joseph Tobin under s.4(8) of the Road Traffic Act 2010 (the 2010 Act).
Garda Lyons formed the opinion that he had consumed an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled vehicle in a public place and was committing an offence under s.4(1)(2)( 3) or (4) of the Road Traffic Act 2010. Garda Lyons did not believe that he had committed an offence under s.4(1A) of the 2010 Act. Joseph Tobin admitted that he had taken 2 drinks before driving. He was arrested and taken to Leixlip Garda Station.
On arrival at Leixlip Garda Station he was advised of his right of access to a solicitor and to obtain legal advice at any time. He did not exercise this right.
He was then required to provide a breath sample for the purpose of determining concentration of alcohol under s.12(1)(a) of the 2010 Act. The apparatus did not function properly. This failed attempt to take a breath sample took place some 35 minutes after his arrival in the Garda Station.
Joseph Tobin was required to permit a designated doctor to take a sample of his blood or, at his option, give a sample of urine, pursuant to s.12(1)(b) of the 2010 Act. The penalties for non-compliance were explained to him. This requirement was made and sample given approximately one and a half hours after the failed attempt to take a breath sample.
Joseph Tobin opted to give urine. He did not exercise his right to take one of the two vials containing his urine specimen for independent analysis.
The specimens of urine were sent to the Medical Bureau of road Safety. On 3 April 2019 a certificate issued from the Bureau indicating a concentration of 47 mg of alcohol per 100 ml of urine. This was 20 mg below the threshold level specified by s.4(3)(a) of the 2010 Act.
On 4 July 2019 a further certificate issued from the Bureau stating presence of “CANNABINOIDS CLASS” drugs in the sample. This certificate did not quantify concentration of drugs in the sample or identify which cannabinoids were found. Not all cannabinoids are psychoactive drugs. Cannabidiol is a harmless cannabinoid which may be legally consumed without prescription. It has no intoxicating effects. The term “CLASS” in the certificate is unexplained.
The District Court Judge admitted this certificate into evidence. He may have concluded that Joseph Tobin had taken cannabis and that the effect of this consumption materially contributed to his intoxication.
The questions submitted to this Court ask whether a member of the Garda Síochána is obliged to provide detail of potential ramifications of exercise of a choice to give a urine sample in lieu of permitting the taking of a blood sample in response to a requirement made by that member under s.12(1)(b) of the 2010 Act.
These questions are framed as follows: “a. Was I correct to accept that fair procedures had been afforded to the appellant in circumstances where the ramifications of his decision to opt between a blood and urine sample were not explained to him? b. In the circumstances of this case, where the appellant had been informed of his right of access to a solicitor at any stage in the proceedings and did not invoke that right, would fair procedures dictate a member of an Garda Síochána, once the relevant legal requirement is made to provide a sample of blood or urine, to inform the defendant of the ramifications of which sample he provides? c. Was I correct in law to convict the appellant?”
In substance, these questions ask whether the District Court Judge should have excluded the certificate from evidence because of failure to give an explanation to Joseph Tobin of the “pros and cons” of opting to provide blood or urine in circumstances where, unknown to Gardaí, Joseph Tobin may have had cannabinoids in his system while driving his motor vehicle. Joseph Tobin was provided with an opportunity to obtain legal advice prior to being required to provide the sample and did not avail of this right.
The answer to question “a” is “yes” and the answer to question “b” is “no”.
Joseph Tobin was advised of his entitlement consult with a solicitor when he arrived at Leixlip Garda Station. Gardaí did not have any duty to give him legal advice. Their duty was confined to explaining his right of access to a solicitor and ensuring that he would receive timely advice if he requested it.
Joseph Tobin was obliged by law to provide a sample of blood or urine. His choice was to provide a sample or commit a criminal offence. All that was required was that he be told that he was required by law to provide the sample and that failure to co-operate would constitute a criminal offence.
The urine sample was taken from Joseph Tobin in accordance with statutory procedures. He was advised of his legal right to choose to give a sample of urine in lieu of blood and elected to give urine.
The 2021 Act does not require that Joseph Tobin be cautioned that if he gave a sample of blood or urine it could be forensically examined and results used in a particular way as evidence in criminal proceedings under the Road Traffic Acts. The law does not require that he be given any such warning. He did not enjoy any constitutional or other legal right which necessitated that Gardaí give him any such caution or warning.
This Court is not expressing a view on whether it might be necessary to provide further information to a person who has been deprived of an opportunity to obtain legal advice prior to completion of sampling under s.12(1)(b) of the 2010 Act. This would depend on whether deprivation of a right to prompt legal advice could be shown to have potentially adversely affected a person's interests.
Any person who has taken the trouble to read pharmaceutical instruction leaflets will know that some drugs should not be consumed by those who intend to drive motor vehicles or in combination with alcohol or other drugs. Users of recreational drugs and alcohol are taken to be aware of psychoactive, soporific, confusing and other effects of ingesting these substances.
The Oireachtas recognises that alcohol and drugs, taken alone or in combination, may impair capacity to control a motor vehicle. Section 3(1) of the Road Traffic Act 2010 specifies that: ‘“intoxicant” includes alcohol and drugs and any combination of drugs or of drugs and alcohol’. This inclusive definition covers substances such as alcohol, drugs and medicines containing drugs which interfere with capacity to control a motor vehicle. The term “drugs” in this definition of “intoxicant” is not necessarily confined to drugs which have a similar range of effects to those of alcohol.
A member of the Garda Síochána who observes erratic driving of a motor vehicle and who forms an opinion that the driver is unable to...
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