DPP (Garda Alan O'Donnell) v Nash
| Jurisdiction | Ireland |
| Judge | Kearns P. |
| Judgment Date | 16 November 2011 |
| Neutral Citation | [2011] IEHC 418 |
| Court | High Court |
| Date | 16 November 2011 |
[2011] IEHC 418
THE HIGH COURT
BETWEEN
AND
ROAD TRAFFIC ACT 1994 S17
ROAD TRAFFIC ACT 1961 S49(4)
ROAD TRAFFIC ACT 1961 S6(A)
ROAD TRAFFIC ACT 1994 S10
ROAD TRAFFIC ACT 2006 S18
ROAD TRAFFIC ACT 1961 S49(8)
ROAD TRAFFIC ACT 1961 S49(1)
ROAD TRAFFIC ACT 1961 S49(2)
ROAD TRAFFIC ACT 1961 S49(3)
ROAD TRAFFIC ACT 1961 S49(4)
ROAD TRAFFIC ACT 1961 S13(1)
CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SÍOCHÁNA STATIONS) REGS SI 119/1987
DE BLACAM DRUNKEN DRIVING & THE LAW 3ED 2003
ROAD TRAFFIC ACT 1994 S21(1)
ROAD TRAFFIC ACT 1994 S17
ROAD TRAFFIC ACT 1994 S13
ROAD TRAFFIC ACT 1994 (SECTION 17) REGS 1999 SI 326/1999 REG 4
DPP v COLLINS 1981 ILRM 447
DPP v CORCORAN UNREP MCCRACKEN 22.6.1999 1999/7/1576
DPP v BOURKE 2006 3 IR 10
DPP v WALSH UNREP MACKEN 16.3.2005 2005/22/4629 2005 IEHC 77
ROAD TRAFFIC ACT 1994 S21
DPP v O'CONNOR UNREP QUIRKE 14.12.2005 2005/22/4512 2005 IEHC 422
ROAD TRAFFIC ACT 1961 S49
MARKEY v MIN FOR JUSTICE & ORS UNREP KEARNS 4.2.2011 2010/33/8273 2011 IEHC 39
CRIMINAL LAW
Road traffic offences
Evidence - Intoxilyser - Certificate - Presumption of accuracy - Refusal of prosecution to call rebuttal evidence - Humidity levels - Whether within recommended levels -Whether prosecution entitled to call rebuttal evidence on technical issues drink driving cases - Whether evidence adduced sufficient to rebut presumption of accuracy - DPP v Collins [1981] ILRM 447 followed - DPP v Walsh [2005] IEHC 77, (Unrep, Macken J, 16/3/2005), DPP v O'Connor [2005] IEHC 422, Markey v Minister for Justice [2011] IEHC 39, (Unrep, Kearns P, 4/2/2011) considered - Road Traffic Act 1994 (No 7), ss17 and 21(1) - Questions answered in negative - (924 SS 2011 - Kearns - 16/11/2011) [2011] IEHC 418
Director of Public Prosecutions v Nash
JUDGMENT of Kearns P. delivered the 16th day of November, 2011
This appeal comes before the Court by way of case stated from the District Court on a point of law, following a request from the prosecution. A copy of the charge sheet and the Section 17 Certificate were included as appendices to the case stated.
The respondent was charged with driving a mechanically propelled vehicle in a public place while there was present in his body a quantity of alcohol such that within three hours after so driving, the concentration of alcohol in his breath exceeded a concentration of 35 microgrammes of alcohol per 100 millilitres of breath, contrary to ss. 49(4) and 6(a) of the Road Traffic Act, 1961 (hereafter referred to as 'the 1961 Act'), as inserted by s. 10 of the Road Traffic Act, 1994 (hereafter referred to as 'the 1994 Act'), as amended by s. 18 of the Road Traffic Act, 2006 (hereafter referred to as 'the 2006 Act').
The case was prosecuted by Superintendent Joseph Roe on behalf of the Director of Public Prosecutions.
Garda Alan O'Donnell gave evidence in the District Court of the following sequence of events:
On 17 th February, 2010, Garda O'Donnell, while on mobile patrol, observed a motorcar being driven towards him on Lower Main Street, Rathkeale, Co. Limerick. He observed the car to turn suddenly and without indicating into St. Mary's Park, a public place. He followed the car into St. Mary's Park and activated his flashing beacon to indicate to the driver to stop, which it did.
Garda O'Donnell approached the vehicle and spoke to the driver. The driver gave his name and address as Mike Nash of Gortroe, Newcastle West, Co. Limerick, the respondent herein. Garda O'Donnell noticed a smell of intoxicating liquor from the driver and his speech was extremely slurred. Upon being asked to step out of the car, the respondent stumbled and was unsteady on his feet. Garda O'Donnell informed the accused that he was of the opinion that he had consumed an intoxicant to such an extent as to render him incapable of having proper control of a mechanically propelled vehicle in a public place.
At 1.45 am Garda O'Donnell arrested the respondent under s. 49(8) of the 1961 Act (as inserted by s. 10 of the 1994 Act) for an offence contrary to ss. 49(1), 49(2), 49( 3) or 49(4) of the 1961 Act. He explained to the respondent in ordinary language that he was arresting him for drink driving. Garda O'Donnell then cautioned him in the usual terms. The respondent told Garda O'Donnell that he understood the terms.
Garda O'Donnell conveyed the respondent to Newcastle West Garda Station and introduced him to Garda Michael Galwey, the member-in- charge. Garda Galwey handed over Form C72 to the accused and explained to him the reason for the arrest and his rights while in custody. At 2.28 am Garda O'Donnell brought the respondent to the medical room of the station with Garda O'Sullivan. Garda O'Sullivan made the legal requirement of the respondent to provide two specimens of breath pursuant to s. 13(1) of the 1961 Act, as inserted by the 2006 Act. At 2.55 am Garda O'Donnell charged the respondent with an offence contrary to s. 49(4) of the 1961 Act as inserted by the 2006 Act.
The next witness at the trial was Garda Michael Galwey, who gave evidence that he was the member-in-charge on the date in question and that he was present when the respondent was brought to the Garda Station. Garda Galwey stated that he entered the respondent's details into the custody record, that he complied with Regulation 8 requirements and that he provided the respondent with a copy of a C72 form. Garda Galwey stated that the respondent refused to sign the custody record in acknowledgment of his rights.
The respondent's solicitor did not cross-examine either Garda O'Donnell or Garda Galwey on their evidence.
The next witness on behalf of the prosecution was Garda Jerry O'Sullivan, who gave the following evidence. The respondent was introduced to Garda O'Sullivan as someone who had been arrested under s. 49(8) of the 1961 Act. Garda O'Sullivan formed the opinion that the respondent had consumed an intoxicant as there was a strong smell of intoxicating liquor from his breath, his eyes were fixed and glazed, he was unsteady on his feet and his speech was slurred. Garda O'Sullivan informed the respondent that he was a trained Lion Intoxilyser 6000lrl Evidential Breath Test Machine Operator and that he was of the opinion that the respondent had consumed an intoxicant and he was requiring the respondent to provide two specimens of breath but that first he would be observing him for a period of twenty minutes to ensure that the respondent had nil by mouth and did not smoke in the last five minutes of that period to ensure non-interference with the Breath Test Machine.
The period of observation began at 2.08 am and at 2.28 am Garda O'Sullivan, being satisfied that he had nil by mouth, brought the respondent to the medical room of the Garda Station. Garda O'Sullivan noted that the Lion Intoxilyser was on standby mode. He checked that there was sufficient gas in the machine for a simulator check to be carried out. He also checked that there was sufficient paper in the machine and that it scrolled freely. He checked the inlet tube and found it in order and warm to the touch. Garda O'Sullivan noted that the temperature in the room was 22.5 degrees Celsius and that the humidity was 26%.
Garda O'Sullivan explained to the respondent that he was checking the machine to ensure that it was in working order and that he would shortly be making a requirement from him to provide two specimens of his breath by exhaling into the machine. Garda O'Sullivan entered both his and the respondent's details into the machine.
At 2.32 am Garda O'Sullivan required the respondent to provide two specimens of breath by exhaling into the machine. He explained the possible consequences to the respondent of a failure or refusal to comply with this requirement in the manner outlined and the respondent indicated that he understood.
Two specimens were provided at 2.35 am and 2.38 am respectively. The Intoxilyser provided two identical original statements which showed a concentration of 58 micrograms per 100 millilitres of breath. Garda O'Sullivan signed both statements in the presence of the respondent and supplied them to him. Garda O'Sullivan cautioned the respondent in the usual way and the respondent signed both statements, and retained one. The Intoxilyser printed off a Section 17 Certificate, a copy of which was handed into Court. On cross-examination Garda O'Sullivan was asked by the solicitor for the respondent whether he was a trained operator of the Intoxilyser machine. Garda O'Sullivan replied that he was. The respondent's solicitor put it to Garda O'Sullivan that the humidity in the room should have been over 30%, and quoted from De Blacam, Drunken Driving and the Law (3 rd Edition, 2003), which states:
"The ambient temperature may be between 15 and 35 degrees centigrade and the ambient relative humidity may be between 30 and 90 per cent."
He asked Garda O'Sullivan to repeat the humidity reading in the room and Garda O'Sullivan stated that it was 26%.
At the conclusion of the evidence of Garda O'Sullivan, the respondent's solicitor submitted that the trial judge should dismiss the case on the basis that the humidity was 26%. Superintendent Roe submitted in reply that the humidity figures were merely guidelines and that if the temperature and humidity of the room were such as to affect the accuracy of the reading, then the Intoxilyser would not have printed off the Section 17 Certificate as...
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