DPP v Finnegan

• Jurisdiction: Ireland
• Judge: Judge Maureen H. Clark
• Judgment Date: 05 November 2008
• Neutral Citation: [2008] IEHC 347
• Docket Number: [2008 No. 180,180/2008
• Court: High Court
• Date: 05 November 2008

[2008] IEHC 347

THE HIGH COURT

180/2008

DPP v Finnegan

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

Prosecutor/Respondent

And

JONATHAN FINNEGAN

Accused/Appellant

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

ROAD TRAFFIC ACT 1961 S49(8)

ROAD TRAFFIC ACT 1994 S13(1)

ROAD TRAFFIC ACT 1994 S13(2)

ROAD TRAFFIC ACT 2002 S23

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 1994 S13(1)(a)

ROAD TRAFFIC ACT 1994 S23(1)

DPP v JOYCE UNREP HIGH QUIRKE 15.7.2004 2004/15/3511

GALLAGHER v O'HANLON UNREP HIGH FINLAY 10.7.1975 1965-75/G/1792

HOBBS v HURLEY UNREP HIGH COSTELLO 10.6.80 1980/6/1106

DPP v BREHENY UNREP SUPREME EGAN 2.3.1993 1993/2/255

CHARLETON, MCDERMOTT & BOLGER CRIMINAL LAW 1ED 1999

DPP (HALLINAN) v PENNY 2006 3 IR 553

ROAD TRAFFIC ACT 1968 S30(3)

Abstract:

Refusal to provide breath specimen when requested - Whether fact of driving vehicle in public place prerequisite to requirement to provide breath specimen - Whether request to provide breath sample lawful in circumstances where driving not proved - Arrest - Whether made lawfully - Characteristics of legitimate opinion or suspicion grounding arrest - Whether suspicion valid - Road Traffic Act 1994, section 13.

Facts: section 49(8) of the Road Traffic Act 1961, as amended, provides that "a member of the Garda Síochána may arrest without warrant a person who in the member's opinion is committing or has committed an offence under this section [i.e. drink driving]". Section 23(1) of the Road traffic Act 1994 provides that "in a prosecution ...for an offence under section 13 for refusing...with a requirement to two specimens of his breath, it shall be a defence for the defendant to satisfy the court that there was a special and substantial reason for his refusal...and that, as soon as practicable after the refusal...he complied...with a requirement under the section concerned in relation to the taking of a specimen of blood or...urine". The appellant had been convicted of an offence under section 13(2) of the Road Traffic Act 1994, as amended, of failing to comply with a requirement made by a Garda pursuant to section 13(1)(a) of the Act of 1994 to provide two specimens of his breath, having been a person arrested under section 49(8) of the Act of 1961. The arresting garda gave evidence that he saw the appellant switch seats with the passenger. The District Judge found that driving was not a prerequisite to a conviction for refusing, without a good and substantial reason, to provide a specimen of breath. The appellant requested the District Judge to state a case to the High Court in the following terms: "Was I correct in law in holding that the requirement made by the Garda pursuant to section 13(1)(a) of the Act of 1994 was made lawfully? Was I correct in holding that the defence provided for in section 23(1) of the Road Traffic Act 1994 would not avail the accused?" The appellant further argued that he had been unlawfully arrested as the arresting garda had no rational basis for forming the opinion that he was driving and as the arrest was unlawful, the requirement to provide a specimen had not been lawfully made.

Held by the Mr. Justice Clarke in answering both questions posed in the affirmative that, section 13(1) of the Act of 1994 established that once a person was arrested under section 49(8) of the Act of 1961 on the basis of the arresting garda's opinion that the person arrested was driving or attempting to drive while under the influence of alcohol and a member of the Garda Síochána at the station was of the opinion that that person had consumed an intoxicant, then the garda could require the arrested person to provide two specimens of breath. A person who failed to comply with such a request, in the absence of a special and substantial reason, would be guilty of an offence. Once the arrest was founded on a reasonably held opinion that the person was driving, then unless the opinion was mala fides or irrational, the arrest was lawful and the request to provide the breath was also lawful.

That a special and substantial reason for being unable to provide specimens of breath could only be a defence when the arrested person had offered to provide blood or urine samples instead and a good and substantial reason did not include trying to impugn the reasonable suspicion for the arrest.

Obiter dictum: That, as a general proposition, it was undesirable that an arrest based on reasonable cause should be invalidated by facts found at a trial. The protection for investigator and citizen alike was that the suspicion had to result from an honest belief, reasonably held at the time of the arrest when the facts were still being investigated. That the arrest of the appellant for driving while intoxicated could not be rendered invalid by the trial judge's finding that he had a doubt that the appellant was driving at the time.

Reporter: P.C.

This is an appeal by way of case stated brought by the accused/appellant.

Background

1 Jonathan Finnegan was convicted on the 11 ^th January 2007 by District Judge John O'Neill that he, on the 23 ^rd July 2006, at Terenure Garda Station in the District Court area of the Dublin Metropolitan District, being a person arrested under s. 49(8) of the Road Traffic Act 1961, having been required by Sergeant Mark McKeon, a member of the Garda Síochána, at Terenure Garda Station, to provide two specimens of his breath pursuant to section 13(1) (a) of the Road Traffic Act 1994, did refuse to comply with the said requirement contrary to section 13 (2) of the Road Traffic Act, 1994 as amended by section 23 of the Road Traffic Act, 2002. Section 49 (8) of the Road Traffic Act 1961, as inserted by section 10 of the Road Traffic Act 1994 states that:

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

2 The facts leading to the conviction have been summarised by the learned District Judge. I will try and reduce the background facts to the agreed relevant parts. The accused Jonathan Finnegan had been drinking for several hours in a pub on the evening of 23 ^rd July 2006. He was arrested for drink driving pursuant to section 49(8) of the Road Traffic Act 1961, as inserted by section 10 of the Road Traffic Act 1994, and the reason for his arrest was explained to him before he was brought to Terenure garda station. At the Garda station Sergeant McKeon formed the opinion that he had consumed an intoxicant and required him to provide two specimens of his breath by blowing into an intoxilyser but the accused refused to comply, protesting that he had not driven the car as his girlfriend was the driver. All the appropriate procedures were followed at the station and the appellant was warned of the consequences of failing to provide the specimens. There is no dispute that he refused to comply with the requests.

3 The learned District Judge outlined the evidence called. The arresting guard observed the appellant driving across the path of the garda car and pulling into the side of the road. As he approached the car, he saw Mr. Finnegan jump into the back seat and saw the passenger get into the driver's seat. When he got up to the car he saw the appellant lying across the back seat and a girl in the driver's seat. She was not wearing a seat belt and appeared flustered. The observer in the garda car did not see anything.

4 The appellant gave evidence that he had been drinking in a pub and had called his girlfriend Lucille Collins to collect him. When she arrived she had a passenger with her in the front so he got into the back seat. They dropped the passenger off and he remained in the back. The appellant alleged that Ms. Collins had pulled into the side of the road as she had received a call on her mobile phone. He refused to provide a breath sample because he was not the driver and he believed that he had no obligation to comply with the request and also that his rights had been infringed. He said that he had repeated to the garda on several occasions that he was not driving the car.

5 Ms. Collins gave evidence confirming that she had been called to collect the appellant, that she had spent time with the appellant's niece before going to the pub to collect him and that his niece had travelled with her to the pub to buy cigarettes. She confirmed that she was the driver at all times and that the appellant was at all times in the back of the car. She asserted that she had pulled into the side of the road to take a phone call. The appellant's niece confirmed that she accompanied Ms. Collins to collect Mr. Finnegan, that she sat in the front seat until she was dropped off and that Ms. Collins was driving at the time.

6 As a result of their testimony, the District Judge stated that he had a doubt that the appellant was driving the car that night. He did not find as a fact that the appellant was not driving as asserted by the appellant. He expressed a doubt about the issue but in effect found that driving was not a prerequisite to a conviction for refusing without a good and substantial reason to provide a specimen. The appellant is aggrieved by this determination and requested the District Judge to state a case to this court in the following terms:

1 Was I correct in law in holding that the requirement made by Sergeant McKeon pursuant to section 13 (I) (a) of the Road Traffic Act 1994 was made lawfully?

2 Was I correct in holding that the defence provided for in section 23(I) of the Road Traffic Act 1994 would not avail the accused?

The Appellant's Arguments

7 It was not disputed that a lawful arrest is a...