DPP v Feghiu

• Jurisdiction: Ireland
• Judge: Mr. Justice Meenan
• Judgment Date: 28 April 2020
• Neutral Citation: [2020] IEHC 235
• Docket Number: [2019 No. 836 SS]
• Court: High Court
• Date: 28 April 2020

IN THE MATTER OF SECTION 2 OF THE SUMAMRY 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 EIMHIN MATTHEWS)

PROSECUTOR/APPLICANT

AND

ION FEGHIU

ACCUSED/RESPONDENT

[2020] IEHC 235

Meenan J.

[2019 No. 836 SS]

THE HIGH COURT

Conviction – Case stated – Drink driving – District Judge seeking the opinion of the High Court – Whether the District Judge was correct in law to dismiss the drink driving prosecution against the respondent on the basis that the Garda did not conduct a 20-minute observation period before he administered the roadside breath test

Facts: The accused/respondent, Mr Feghiu, at a sitting of Dublin Metropolitan District Court at Swords, County Dublin, on 18 February 2018, appeared to answer a summons alleging that: “On 02/12/2017 at Forester Way, Swords, Dublin, a public place, in the said District Court area of Dublin Metropolitan District did drive a mechanically propelled vehicle registered number – while there was present in your body a concentration of alcohol such that within three hours after so driving, the concentration of alcohol in your blood did exceed a concentration of 50 milligrammes of alcohol per 100 millilitres of blood, to wit 147 milligrammes, contrary to section 4(2) and (5)(a) of the Road Traffic Act, 2010, 1961.” Following submissions by the prosecutor/applicant, the Director of Public Prosecutions, and the accused/respondent, and having considered the evidence, the District Court Judge concluded that a 20-minute observation period should have been observed in line with instructions for the use of the roadside breath test apparatus and was not satisfied to mark a conviction in the matter. The case was dismissed. The prosecutor/applicant, being dissatisfied with this determination as being an erroneous point in law, asked the District Judge to state a case pursuant to s. 2 of the Summary Jurisdiction Act 1857 as extended by s. 51 of the Courts (Supplemental Provisions) Act 1961. The opinion of the High Court, therefore, was sought on the following question: “(i) Notwithstanding the other factors that grounded the arresting Garda’s opinion, was I correct in law to dismiss the drink driving prosecution against the accused on the basis that the Garda did not conduct a 20-minute observation period before he administered the roadside breath test?”

Held by the Court that it fully agreed with the conclusions reached in Director of Public Prosecutions v Slattery [2017] IEHC 442. The Court noted that, in this case, the Garda formed his opinion, inter alia, having seen the result of the breath test from using the Dräger alcohol test machine. As stated in Director of Public Prosecutions v Slattery: “the threshold for formation of an opinion for the purposes of making an arrest is a low threshold” and “the operating instructions for the apparatus clearly do not form any part of the offence itself”. The Court held that it follows from this that the Garda was not obliged to carry out a 20-minute observation period before using the apparatus.

The Court held that the District Judge was not correct in law to dismiss the drink driving prosecution against the accused/respondent on the basis that the Garda did not conduct a 20-minute observation period before he administered the roadside breath test; thus, the answer to the question posed was “no”. The Court would hear counsel as to the consequential orders that arose.

Case stated.

JUDGMENT of Mr. Justice Meenan delivered on the 28th day of April, 2020

Case stated

1 This is a case stated by a judge of the District Court pursuant to s. 2 of the Summary Jurisdiction Act, 1857 as extended by s. 51 of the Courts (Supplemental Provisions) Act, 1961 made at the request of the prosecutor, being dissatisfied with a determination of the said judge as being erroneous in point of law.

2 At a sitting of Dublin Metropolitan District Court at Swords, County Dublin, on 18 February 2018, the accused/respondent appeared to answer a summons alleging that: -

“On 02/12/2017 at Forester Way, Swords, Dublin, a public place, in the said District Court area of Dublin Metropolitan District did drive a mechanically propelled vehicle registered number – while there was present in your body a concentration of alcohol such that within three hours after so driving, the concentration of alcohol in your blood did exceed a concentration of 50 milligrammes of alcohol per 100 millilitres of blood, to wit 147 milligrammes, Contrary to section 4(2) and (5)(a) of the Road Traffic Act, 2010, 1961.”

3 The facts heard or submitted and as so found by the District Judge are as follows: -

(i) At approximately 2:25 a.m. on Saturday, 2 December 2017, whilst Garda Eimhin Matthews, of Swords Garda Station, was on mobile patrol at Forester Way in Swords, County Dublin, he observed a mechanically propelled vehicle having registration number – driving in...