DPP (Curran) v Foley

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 31 January 2006
• Neutral Citation: [2006] IEHC 11
• Docket Number: [2005
• Court: High Court
• Date: 31 January 2006

DPP (Garda Curran) v Foley

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857 AS

EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT

1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA SHANE CURRAN)

PROSECUTOR/APPLICANT

AND

GARRETT FOLEY

DEFENDANT/RESPONDENT

[2006] IEHC 11

[No. 1137 SS/2005]

THE HIGH COURT

CRIMINAL LAW

Road traffic offences

Drunken driving - Alcohol test - Intoxilyzer - Detention for observation - Obligation to inform citizen of fact of and reasons for being detained - Whether detention lawful - Whether evidence obtained during detention admissible - Whether 20 minute period of detention for observation integral part of lawful detention resulting from arrest - Whether additional caution or warning necessary at commencement of 20 minute period - Director of Public Prosecutions v Finn [2003] 1 IR 372 and Director of Public Prosecutions v McNiece [2003] 2 IR 614 applied - Road Traffic Act 1961 (No 24), s 49 - Road Traffic Act 1994 (No 7), s 13 - Case stated answered in negative (2005/1137SS - O'Neill J - 20/1/2006) [2006] IEHC 11

DPP (Curran) v Foley

Facts: the respondent had been arrested for driving under the influence of intoxicating liquor and was subjected to an Intoxilyser test in respect of which he alleged he had not been informed of the reason for his detention, being the requirement not to consume anything for a 20 minute period prior thereto. The District Court judge dismissed the charges but posed the following question to the High Court for its opinion by way of case stated: whether he was correct in dismissing the charge by reason of the fact that there was an obligation on the prosecution to establish on evidence that the accused was told of the act of and the reasons for his detention, that in the absence of such evidence, the detention was unlawful and in breach of the accused's constitutional rights and that in consequence the evidence subsequently obtained should not be admitted.

Held by O'Neill J in answering the case stated in the negative that if the period of twenty minutes for the purposes of observation was justified by way of evidence as being necessary for the purposes of obtaining a suitable sample of breath for the purposes of validly carrying out the breath test, it necessarily followed that the twenty minute period was an integral part of the detention for the purpose for which the arrest was made namely, to detain a person so that samples could be required under section 13 of the Road Traffic Act 1994 and tested pursuant to its provisions. The period of detention in question was to be properly regarded as an integral part of the overall detention initiated by the arrest of the accused for the purpose of enabling samples to be taken pursuant to section 13 of the Road Traffic Act 1994. In that situation, no additional caution or warning was required at the commencement of that twenty minute period so as to render it lawful. The information and cautions given at the time of the arrest by the member in charge when the alleged offender was brought to the garda station, if sufficient to render lawful the overall detention would also be sufficient to render lawful the detention during the period of twenty minutes observation. Accordingly, there was no breach of the accused's constitutional rights by reason of an absence of such a warning.

Reporter: P.C.

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1961 S6(a)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 1961 S49(1)

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S49(3)

ROAD TRAFFIC ACT 1961 S49 (8)

ROAD TRAFFIC ACT 1994 S49(1)

ROAD TRAFFIC ACT 1994 S49(2)

ROAD TRAFFIC ACT 1994 S49(3)

ROAD TRAFFIC ACT 1994 S49(4)

ROAD TRAFFIC ACT 1994 S49 (8)

CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA STATIONS) REGS 1987 SI 119/1987 REG 8(1)

ROAD TRAFFIC ACT 1994 S13(1)(a)

DPP v FINN 2003 1 IR 372 2003 2 ILRM 47

DPP v MCNIECE 2003 2 IR 614

1 JUDGMENT of O'Neill J. delivered the 31st day of January, 2006.

2 These proceedings are an appeal by way of case stated pursuant to s. 2 of the Summary Jurisdiction Act 1857 as extended by s. 51 of the Courts (Supplemental Provisions) Act 1961 from Judge Gerard Haughton a judge of the District Court. The case stated arises out of proceedings in the District Court on 30th July, 2003 in which the defendant/respondent Garrett Foley appeared before the learned District Judge on foot of Bridewell Charge Sheet 29/2001 which is alleged that Garrett Foley did:

"On 6th January, 2001 at Benburb Street, Dublin 7 in the Dublin Metropolitan District drove a mechanically propelled vehicle registration number 96 D 20651 in a public place while there was present in your body a quantity of alcohol such that within three hours after so driving, the concentration of alcohol in your breath exceeded a concentration of 35 microgrammes of alcohol per 100 millilitres of breath, contrary to s. 49(4) and (6)(a) of the Road Traffic Act 1961 as inserted by s. 10 of the Road Traffic Act 1994."

3 The defendant/respondent (hereinafter referred to as the "accused" had pleaded not guilty to this charge).

4 The case stated recites that Garda Curran the applicant, gave evidence to the effect that on 6th January, 2001 he was on beat patrol in Benburb Street when he observed a dark coloured BMW being driven slowly along Benburb Street. He signalled the driver of this car to stop, which he did. The driver gave his name as Garrett Foley together with his address. Garda Curran noticed a strong smell of alcohol and that the accused's speech was slurred. At 4.39 am Garda Curran formed the opinion that the accused was under the influence of an intoxicant and he informed the accused that he was of opinion that he was under the influence of an intoxicant to such an extent as to render him incapable of having proper control of a mechanically propelled vehicle in a public place and that he had committed an offence under s. 49(1), (2), ( 3) or (4) of the Road Traffic Acts 1961– 1994. Garda Curran then arrested the accused under s. 49(8) of the Road Traffic Acts 1961– 1994 at 4.40 am and he explained to the accused in ordinary language that he was being arrested for drunk driving and he cautioned him.

5 Garda Curran then conveyed the accused to Store Street Garda station where they arrived at 5.00 am. On arrival the accused was introduced to the member in charge, Garda Oliver Henry, and Garda Curran informed Garda Henry that the accused had been arrested...