DPP v Donoghue

JurisdictionIreland
JudgeMr. Justice Barron
Judgment Date01 January 1987
Neutral Citation1986 WJSC-HC 415
Docket Number1986 - 97 SS,[1986 No. 97 SS]
CourtHigh Court
Date01 January 1987

1986 WJSC-HC 415

THE HIGH COURT

1986 - 97 SS
DPP v. DONOGHUE

BETWEEN:

DIRECTOR OF PUBLIC PROSECUTIONS
COMPLAINANT

AND

JOHN DONOGHUE
DEFENDANT

Citations:

COLLINS V KELLEHER 1983 IR 388

DPP V GILMORE 1981 ILRM 102

DPP V O'CONNOR 1985 ILRM 333

HOBBS V HURLEY 1980/6/1106.

ROAD TRAFFIC (AMDT) ACT 1978 PART III

ROAD TRAFFIC (AMDT) ACT 1978 S10

ROAD TRAFFIC (AMDT) ACT 1978 S49(2)

ROAD TRAFFIC (AMDT) ACT 1978 S49(3)

ROAD TRAFFIC (AMDT) ACT 1978 S49(4)(a)

ROAD TRAFFIC (AMDT) ACT 1978 S49(6)

ROAD TRAFFIC ACT 1961 S49

ROAD TRAFFIC ACT 1961 S49(1)(a)

Synopsis:

ROAD TRAFFIC

Arrest

Validity - Power of policeman to arrest without warrant - Power exercisable in respect of person who, in policeman's opinion, has driven a car while there was an unlawful concentration of alcohol in his body - Defendant reported motor accident in which he was involved - Policeman observed condition and behaviour of defendant - Policeman formed said opinion and arrested defendant - Defendant brought to police station where a blood test showed unlawful concentration of alcohol in his blood - Held that the indications of the defendant's condition observed by the policeman prior to the arrest and his opinion based thereon justified the arrest of the defendant pursuant to s.49(6) of the Act of 1961 although the defendant's breath had not been tested prior to the arrest - Held, accordingly, that the result of the blood test was admissible in evidence and that a dismissal by the District Court of the complaint made by the complainant of an offence under s.49(2) of the Act was not made in accordance with the law - Road Traffic (Amendment) Act, 1978, s.49 - Authorities reviewed - (1986/97 SS - Barron J. - 29/4/86) - [1986] IR 188 [1987] ILRM 129

|Director of Public Prosecutions v. Donoghue|

1

Judgment of Mr. Justice Barron delivered 29th day of April 1986.

2

On the 9th of May 1985 the Defendant appeared in the District Court in Kildare to answer a complaint that he had on the 3rd February 1985 driven a motor car in a public place while there was present in his body a quantity of alcohol being such that within three hours after so driving the concentration of alcohol in his blood exceeded a concentration of one hundred milligrammes of alcohol per one hundred millilitres of blood contrary to section 49 (2) and (4) (a) of the Road Traffic (Amendment) Act 1978.

3

The material facts are fully set out in the Case Stated. The Defendant was involved in a road traffic accident on the Rathangan to Edenderry Road at approximately 9.45 p.m. on the night of 3rd February 1985. He walked into Rathangan where he reported the accident to Garda Kavanagh with whom he returned to the scene of the accident. Garda Kavanagh observed that the Defendant was unsteady on his feet, that his face was flushed, and that there was a smell of alcohol from his breath. He formed the opinion that the Defendant had consumed sufficient alcohol to render him over the legal limit. He arrested the Defendant under section 49 (6) for an offence committed under section 49 (2) or (3). On arrival at the Garda Station, the Defendant was required to give a sample of either blood or urine and gave a sample of blood at 11.40 p.m. Analysis show this sample to contain a concentration of alcohol in excess of one hundred milligrammes per one hundred millilitres.

4

The matter came on for hearing in the Courthouse, Kildare on the 9th May 1985, At the conclusion of the prosecution evidence, it was submitted on behalf of the Defendant that the Guard could not have formed an opinion that the Defendant had committed an offence under section 49 (2) or (3) since no sample of his breath had been taken. He had therefore no power to arrest the Defendant thereby making the evidence of the concentration of alcohol in his blood inadmissible in evidence. He sought a dismiss of the complaint in the absence of any evidence to support it. The District Justice was of the opinion that the Guard not having formed the opinion that the Defendant was incapable of having proper control of the car was not entitled from observation alone to form an opinion that the Defendant was in breach of section 49 (2) or (3). He accordingly dismissed the complaint and now seeks the opinion of this Court as to whether he was right in law in so deciding.

5

Section 49 of the Road Traffic Act 1961as inserted by section 10 of the Road Traffic (Amendment) Act 1978so far as is material is as follows:

6

a "49 - (1) (a) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle.

7

(b) In this subsection "intoxicant" includes alcohol and drugs and any combination of drugs or of drugs and alcohol.

8

(2) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his body a quantity of alcohol such that, within three hours after so driving or attempting to drive, the concentration of alcohol in his blood will exceed a concentration of 100 milligrammes of alcohol per one hundred millilitres of blood.

9

(3) A person shall not drive or attempt to drive a mechanicall propelled vehicle in a public place while there is present in his body a quantity of alcohol such that, within three hours after so driving or attempting to drive, the concentration of alcohol in his urine will exceed a concentration of 135 milligrammes of alcohol per 100 millilitres of urine.

10

(6) A member of the Garda Siochána may arrest without warrant a person who in the member's opinion is committing or has committed an offence under this section."

11

The matters which might properly be taken into account by a member of the Garda Siochana before forming the opinion necessary to effect an arrest under subsection (6) were considered by Costello J. in Hobbs .v. Hurley, an unreported decision delivered on the 10th June 1980. In that case, the arresting Garda had formed the opinion that the Defendant had consumed intoxicating liquor. He required him to take a breath test which was positive. He then formed the opinion that he had committed an offence under section 49 and arrested him under section 49 (6). It was submitted on behalf of the Defendant that as the breath test merely established the presence of alcohol in the Defendant": breath it added nothing to the information available to the Garda. Since the Garda had not before the test formed the opinion required by section 49 (6), he could not properly have formed it thereafter. This submission was rejected. Costello J. said at page 4:

"A lawful arrest can be made when a member of the Garda Siochana is of the opinion that "an offence under the section" has been committed. There are three distinct offences created by section 49 and it is quite clear that at the time of the arrest it would not be possible for the Garda then to know under which subsection a suspect would subsequently be charged. The Oireachtas has therefore permitted an arrest to be made when an opinion is arrived at that an offence...

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3 cases
  • DPP v Gaughran
    • Ireland
    • High Court
    • 1 January 1993
    ...S49(2) ROAD TRAFFIC ACT 1961 S12 DPP V MCGARRIGLE UNREP SUPREME 22.6.87 1991/11/2775 ROAD TRAFFIC (AMDT) ACT 1978 S13(3) DPP V DONOGHUE 1987 ILRM 129 DPP V GILMORE 1981 ILRM 102 HOBBS V HURLEY UNREP COSTELLO 10.6.80 1980/6/1106 DPP V MCKEON UNREP LARDNER 30.4.90 DPP V BRETT UNREP KEANE 19.3......
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    ...relies on D.P.P. v. Ennis [2011] IESC 46 and D.P.P. v. (Moyles) Cullen [2014] 3 I.R. 30. Counsel also relies on D.P.P. v. Donoghue [1986] I.R. 188 in support of the submission that what is reasonable (as regards the formation of an opinion by a garda that an offence has been committed) will......
  • DPP v Gray
    • Ireland
    • High Court
    • 8 May 1987
    ...JURISDICTION ACT 1857 S2 COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51 HOBBS V HURLEY UNREP COSTELLO 10.6.80 1980/6/1106 DPP V DONOHOE 1987 ILRM 129 DPP V GILMORE 1981 ILRM 102 Synopsis: GARDA SIOCHANA Powers Arrest - Driver - Sobriety - Opinion of garda - Condition precedent to arrest of d......

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