DPP v Lynch

• Jurisdiction: Ireland
• Judgment Date: 01 January 1991
• Date: 01 January 1991
• Docket Number: [1990 No. 753 SS]
• Court: High Court

Director of Public Prosecutions v. Lynch

The Director of Public Prosecutions

Complainant

and

Pascal Lynch

Defendant

[1990 No. 753 SS]

High Court

Criminal law - Road traffic offence - Evidence - Power of arrest where garda of opinion that offence has been committed - Whether evidence must be given by arresting garda that he formed such opinion - Whether such opinion can be inferred from circumstances of arrest - Road Traffic (Amendment) Act, 1978 (No. 19), s. 10, sub-s. 6.

Section 49 of the Road Traffic Act, 1961, as amended by the Road Traffic (Amendment) Act, 1978, creates the offences of driving or attempting to drive a mechanically propelled vehicle in a public place while under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle, or while there is present in the body a concentration of alcohol exceeding specified limits. By sub-s. 6 of s. 49, a member of the Garda Síochána may arrest without warrant any person who, "in the member's opinion", is committing or has committed an offence under the section. Persons arrested and brought to a garda station may be required to provide to a designated registered medical practitioner a specimen of urine or to permit a specimen of blood to be taken; failure to comply with such a requirement is an offence under the Act of 1978.

The defendant was tried in the District Court on a charge of refusing to comply with a requirement to provide a sample of blood or urine. The arresting garda gave evidence that he had signalled the defendant to stop his car at a check-point and had observed that the defendant had a drowsy appearance, that his speech was slurred and that he was unsteady on his feet. He further stated that he formed the opinion that the defendant was incapable of driving a mechanically propelled vehicle in a public place and that he then arrested him under s. 49, sub-s. 6 of the Act of 1961. It was submitted on behalf of the defendant that there was no evidence that the arresting garda had formed the opinion that an offence under s. 49 was being, or had been, committed. The District Justice acceded to this submission and the charge was dismissed.

On the complainant's appeal by way of case stated against the order of the District Court it was

Held by O'Hanlon J., in answering the question posed in the case stated, 1, that whether (in the absence of evidence by the garda himself on the point) a court could draw an inference that an arresting garda had formed an opinion that an offence under s. 49 was being or had been committed, depended on the circumstances in which the arrest had been effected.

2. That in a case where a garda gave evidence that he had witnessed...