DPP v Corcoran

• Jurisdiction: Ireland
• Judge: Mr. Justice Lavan
• Judgment Date: 01 January 1996
• Neutral Citation: 1995 WJSC-HC 2121
• Court: High Court
• Docket Number: No. 286ss/1994,[1994 No. 286SS]
• Date: 01 January 1996

DPP v. CORCORAN

IN THE MATTER OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACTS

1961–1986

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR

AND

BRENDAN CORCORAN

DEFENDANT

1995 WJSC-HC 2121

No. 286ss/1994

THE HIGH COURT

Synopsis:

ROAD TRAFFIC

Motorist

Alcohol test - Requirement - Compliance - Election - Consent to provision of blood sample - Medical practitioner unable to obtain sample of blood - Motorist not at fault - Motorist reminded of obligation to provide specimen of urine - No such obligation - Results of urine test inadmissible at trial of motorist - Statute - Interpretation - Strained meaning of enactment unjustified - Road Traffic Act, 1961, s. 49 - Road Traffic (Amendment) Act, 1978, s. 13 - (1994/286 SS - Lavan J. - 27/6/95) - [1995] 2 I.R. 259

|Director of Public Prosecutions v. Corcoran|

Citations:

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

ROAD TRAFFIC ACT 1961 S49(3)

ROAD TRAFFIC ACT 1961 S49(4)(a)

ROAD TRAFFIC (AMDT) ACT 1978 S10

ROAD TRAFFIC (AMDT) ACT 1984 S3

ROAD TRAFFIC (AMDT) ACT 1978 S12

ROAD TRAFFIC ACT 1961 S49(1)

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S49(6)

ROAD TRAFFIC (AMDT) ACT 1978 S13(1)(b)

ROAD TRAFFIC ACT 1961 S49

ROAD TRAFFIC (AMDT) ACT 1978 S19

CONNOLLY V SALINGER 1982 ILRM 482

DPP V SWAN 1994 1 ILRM 314

ROAD TRAFFIC (AMDT) ACT 1978 S21

ROAD TRAFFIC (AMDT) ACT 1978 S22

ROAD TRAFFIC (AMDT) ACT 1978 S23

ROAD TRAFFIC (AMDT) ACT 1978 S12(3)

HOWARD V COMMISSIONERS OF PUBLIC WORKS 1994 1 IR 101

DPP, PEOPLE V FARRELL 1978 IR 13

MAXWELL ON INTERPRETATION OF STATUTES 12ED

ROAD TRAFFIC (AMDT) ACT 1978 S49(3)(a)

ROAD TRAFFIC (AMDT) ACT 1978 S49(3)(b)

ROAD TRAFFIC (AMDT) ACT 1978 S13

1 Judgment of Mr. Justice Lavan delivered the 27th day of June 1995.

2 This is a Case Stated by Judge Desmond Hogan, a judge of the District Court assigned to District number 14, District Court area of Limerick City, sitting at the District Court sitting at the Courthouse, Limerick pursuant to the provisions of Section 52 of the Courts (Supplemental Provisions) Act, 1961for the determination of the High Court. The issue for determination arises out of the prosecution of the above named Accused for an offence contrary to Section 49(3) and (4)(a) of the Road Traffic Act, 1961as inserted by Section 10 of the Road Traffic (Amendment) Act 1978and as amended by Section 3 of the Road Traffic (Amendment) Act 1984.

3 At the hearing of the aforesaid prosecution, the following facts were admitted:-

4 1. At 12.20am on Saturday the 3rd of October, 1992 the Accused was driving a van (registration 88 c 809) at Ballykeefe, Mungret in the County of Limerick when he was stopped by Garda Brendan J. Nolan. Garda Nolan got a strong smell of intoxicating liquor from the Accused's breath and under s.12 of the Road Traffic Act 1978requested the Accused to provide a specimen of his breath. The accused did so, and the test proved positive.

5 2. Having formed the opinion that the Accused was committing an offence under s.49 (1), ( 2) or (3) of the Road Traffic Act 1961as amended, Garda Nolan duly arrested the accused under s. 49 (6) of the Act for drunken driving, informing him accordingly. The accused was then conveyed to Henry Street Garda Station where he arrived at 12.48am.

6 3. Dr. Aine Ni Riain was contacted on behalf of the Gardai to examine the Accused. She arrived at the station at 1.05am, and was introduced to the Accused as the Designated Registered Medical Practitioner. Under s.13(1)(b) of the Road Traffic Act, 1978, Garda Nolan required the Accused to permit Dr. Ni Riain to take from him a specimen of his blood or at his option to provide her with a specimen of his urine, and informed the accused of the consequences of his refusing or failing to comply with the aforesaid requirement.

7 4. The Accused consented to the taking of a blood sample. However, notwithstanding his full co-operation, Dr. Ni Riain was unable to obtain any blood from him. When this situation became apparent, Garda Nolan "reminded" the Accused of his option to give urine and whereupon the Accused agreed to provide a specimen of urine which he did. In agreeing to provide the said specimen of urine the Accused did so on foot of the intervention of Garda Nolan as a consequence of which intervention the Accused believed and was lead to believe by Garda Nolan that he was under a legal obligation to agree to provide the said specimen of urine.

8 5. One of the urine specimens provided was forwarded to the Medical Bureau of Road Safety, and on analysis was found to have a concentration of 216mg of alcohol per 100ml of urine. This being in excess of the legal limit, the Accused was duly charged under s.49 of the 1961 Act, as amended.

9 It was contended for the Accused that:-

10 (a) Under s.19 of the Road Traffic Act, 1978in a prosecution of a person who has not exercised the option to provide a specimen of urine, for refusing or failing to permit a Registered Medical Practitioner to take a specimen of blood, it is a good defence for the Defendant to satisfy the Court that there was a special and substantial reason for his refusal or failure.

11 (b) If a person in response to a requirement under s.13 (1)(b) of the 1978 Act complies with the requirement and his legal obligations by opting to allow the designated Registered Medical Practitioner to take from him a specimen of his blood but, through no fault of his own, the above Practitioner is unable to obtain a specimen, the person in question has complied with his legal obligations under s.13(1)(b) and there is no obligation on him at that stage to furnish a specimen of his urine and a person should not be required whether expressly or impliedly to furnish a specimen of urine in these circumstances.

12 (c) In the circumstances of this case, the Garda was not entitled to "remind" the Accused of his "option" to furnish a specimen of urine and thereby lead him to believe that he was under a legal obligation so to do and in the circumstances the Accused was not obligated to furnish the specimen of urine; the specimen was not a specimen furnished pursuant to legitimate requirement under s.13 of the 1978 Act.

13 (d) Accordingly, there was no admissible evidence that the Accused's urine contained an amount of alcohol in excess of the permitted amount.

14 It was contended on behalf of the Prosecutor that a prima facie case had been made out against the Accused; that Garda Nolan was correct in his analysis of the Accused's legal obligation to provide a urine sample reviving in the event of failure to obtain a blood sample; that this view of the law was supported by the decisions in the cases of ...