DPP v Gilmore

• Jurisdiction: Ireland
• Judge: Henchy J.,KENNY J.:
• Judgment Date: 29 May 1981
• Neutral Citation: 1982 WJSC-SC 268
• Date: 29 May 1981
• Court: Supreme Court

1982 WJSC-SC 268

THE SUPREME COURT

Henchy J.

Griffin J.

Kenny J.

304/80

D.P.P. . v. GILMORE.

DIRECTOR OF PUBLICPROSECUTIONS

v.

GILMORE

1 Henchy J.delivered the 29th. May 1981 GRIFFIN CONCURRING

2 This case stated arises out of a conviction of the defendant in the District Court. The conviction, to summarise or paraphrase it, was for driving a motor car when the concentration of alcohol in the defendant's urine exceeded 135 milligrammes of alcohol per 100 millilitres of urine. Such conduct is an offence contrary to subs. 3 of s. 49 ("the new s. 49") of the Road Traffic Act, 1961, that is to say, the subs. (3) of the s. 49 which s. 10 of the Road Traffic Act, enacted in place of the s. 49 of the original 1961Act.

3 The defendant appealed to the Circuit Court against his conviction. As in all of these breathalyser cases,the defence was a purely technical one. It raised a point which obviously troubled the Circuit Court Judge. So much so that he has stated this case in order that his uncertainty as to the applicable law may be clarified by this Court.

4 The point of law involved will emerge when I enumerate the matters which the prosecution had to prove on the rehearing in the Circuit Court. They are as follows.

5 1. That the relevant member of the Garda Sáochánawas of the opinion that on the date in question the defendant was in charge of the mechanically propelled vehicle in a public place at a time when he had consumed intoxicating liquor; see s. 12(1) of the 1978 Act. The prosecution clearly discharged this onus of proof. Counsel for the defendant has not suggested otherwise. The defendant driver was stopped by a Garda at a checkpoint - the checkpoint being for a purpose not apparently related to a driving offence - and when the Garda heard him enunciate his name andaddress in reply to queries put to him, and smelled his breath, he formed the opinion that the defendant had consumed an intoxicant. In the circumstances, and having regard to what an analysis later of a sample of the defendant's urine disclosed, the Garda was well justified in forming that opinion.

6 2. That, in compliance with a requirement made by the Garda, the defendant exhaled into the apparatus commonly called a breathalyser a specimen of his breath; see s. 12(1) of the 1978 Act. It was established beyond question that the defendant did exhale, as required, into a breathalyser.

7 3. That, without a warrant, because in the opinion of the Garda the defendant was committing or had committed an offence under the new s. 49, the Garda arrested the defendant: see subs. (6) of the new s. 49. Unquestioned evidence was given by the Garda that the breathalyser test gave a positive result, thus suggesting that the defendant had consumed more than the permitted amount of alcohol, and that the Garda thenarrested the defendant without warrant and brought him to the local Garda station. What was in issue in the Circuit Court, and it is the central question in this case stated, is whether the opinion which the Garda said he formed justified the arrest without warrant under subs. (5) of the new s. 49. I shall return to this point when I have disposed of the other proofs which were required of the prosecution.

8 4. That, having been brought to the Garda station, the defendant was given the option of permitting a designated medical practitioner to take a specimen of his blood or of providing for the designated medical practitioner a specimen of his urine, and that he opted for thelatter: see s. 13 of the 1978 Act. The case stated is silent on this matter, but counsel for the defendant has raised no point under s. 13 and I have no doubt that its provisions were complied with.

9 5. That the requirements stipulated by the 1978 Act and by the relevant regulations for the due certification of the number of milligrammes of alcohol per 100 millilitres of urine in the defendant'ssamplewere satisfied. Again, there is no dispute on this aspect of the case. It may be safely assumed from the case stated and from the absence of any objection from counsel for the defendant, that all the specified formalities were observed.

10 6. Finally, that the certificate that was issued by the Medical Bureau of Road Safety under s. 22 of the 1978 Act shoved a concentration of alcohol in excess of the permitted level and that the accuracy of such concentration has not been disproved: see ss. 22 and 23 of the 1978 Act. It is implicit in the case stated, and in the scope of the argument of counsel for the defendant, that it was established beyond doubt that the defendant had a concentration of 141 milligrammes of alcohol per 100 millilitres of urine when the permitted concentration was 135 milligrammes of alcohol.

11 It is clear, therefore, that the conviction is unimpeachable if the prosecution complied with what I have set out as the third matter of proof. It is agreed by counsel for the Director of PublicProsecutions that if the prosecution failed in this respect, the conviction cannot stand, for apart from the fact that this proof in itself is essential to a valid conviction, the further matters of proof would be unsatisfied because they all depend on a valid arrest

12 The crucial question, therefore, is: was there a valid arrest? It follows from subs. (6) of the new s. 49 that the Garda's arrest of the defendant without warrant was valid if he was properly of opinion that the defendant was committing or had committed an offence under that section. There are, however, three offences (or more correctly, six offences, when attempts are counted as separate offences) that may be committed under the section: (1) driving or attempting to drive when the accused is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle; (2) driving or attempting to drive when the concentration of alcohol in the accused's blood exceeds the permitted level; and (3) driving or attempting to drive when theconcentration of alcohol in the accused's urine exceeds the permitted level. The offence described at (1) differs from those described at (2) and (3) in that it is founded on a proven lack of capacity to drive with proper control, resulting from the influence of an intoxicant; whereas the offences described at (2) and (3) are unconnected with a demonstrated incapacity to drive safely. An accused may be able to show an ostensible capacity to drive safely, but if he fails to qualify under the test of blood-alcohol or urine-alcohol levels set out in (2) and (3)" his seeming capacity to drive safely will provide no defence to a charge under either of those subsections.

13 In the present case, it is the fact, and so found expressly or impliedly by the Circuit Judge, that the Garda arrested the defendant in pursuance of the subs. (6) of the new s. 49; that such arrest was made because of the Garda's opinion that the defendant had committed an offence under that section; that the particular offence as to which he said heformed that opinion was one of driving while under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle; and that the sole foundation for that opinion was the defendant's failure to pass the breathalyser test.

14 It is clear from the 1978 Act (see s. 12(4)) that the breathalyser used was designed merely to indicate the presence of alcohol in the breath. If its use gives a positive result, that necessarily confirms the Garda's earlier opinion that the person tested has consumed intoxicating liquor. If the result of the test is negative, the contrary is not true; it merely establishes that the amount (if any) of alcohol indicated in the breath by the breathalyser is not of such a level as to call for a scientific determination of the...