DPP v Malone

JurisdictionIreland
JudgeMr. Justice Kearns
Judgment Date28 June 2006
Neutral Citation[2006] IESC 38
CourtSupreme Court
Docket Number[S.C. No. 159 of 2005]
Date28 June 2006

[2006] IESC 38

THE SUPREME COURT

McCracken J.

Kearns J.

Macken J.

[S.C. No. 159 of 2005]
DPP v MALONE

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANT

AND

PEADAR MALONE
RESPONDENT

COURTS OF JUSTICE ACT 1947 S16

ROAD TRAFFIC ACT 1961 S49(8)

ROAD TRAFFIC ACT 1994 S13(1)(B)

ROAD TRAFFIC ACT 1961 S49(1)

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S49(3)

ROAD TRAFFIC ACT 1994 S13(1)

ROAD TRAFFIC ACT 1994 S13(3)

ROAD TRAFFIC ACT 1994 S12

DPP v FINN 2003 1 IR 372

DPP v MANGAN 2001 2 IR 373

DPP (COUGHLAN) v SWAN 1994 1 ILRM 314

DPP (O'DRISCOLL) v O'CONNOR 2000 1 ILRM 60

CRIMINAL LAW

Road traffic offences

Drink driving - Alcohol test - Blood or urine specimen - Failure to provide urine specimen within time allowed - Whether reasonable time allowed to provide urine specimen - DPP (Coughlan) v Swan [1994] 1 ILRM 314 approved - Road Traffic Act 1994 (No 7), s 13 - Reasonable time allowed (159/2005 - SC - 28/6/2006) [2006] IESC 38

DPP v Malone

Facts: This was a case stated by the Circuit Court. The respondent was charged with a refusal to provide a specimen of his blood or a specimen of urine contrary to s. 13(3) of the Road Traffic Act 1994. The Circuit Court judge stated for the opinion of the Court the question whether he was entitled to hold that the respondent had not been given a reasonable time to provide the urine sample.

Held by the Supreme Court (McCracken, Kearns and Macken JJ) in answering the question posed in the negative that if a person opted to provide urine he had to be given an opportunity for compliance but where he failed to actually provide urine the obligation to provide a blood specimen immediately revived.

Reporter: R.W.

1

JUDGMENT of Mr. Justice Kearns delivered the 28th day of June, 2006

2

This is a case stated by His Honour Judge Raymond Groarke, assigned to the Eastern Circuit, pursuant to s.16 of the Courts of Justice Act, 1947, seeking the determination of certain questions of law which arose in the course of proceedings before him in the Circuit Court.

3

The respondent appeared before the Circuit Court judge at Trim Circuit Court on the 31st October, 2003, to prosecute an appeal from the District Court in respect of an offence alleged to have been committed by him on the 19th January, 2003, at Ashbourne Garda Station when, being a person arrested under s.49(8) of the Road Traffic Act, 1961, and having been required by Garda Niall O'Sullivan, a member of the Garda Síochána, at Dunshaughlin Garda Station, pursuant to s.13(1)(b) of the Road Traffic Act, 1994, to permit a designated doctor to take from him a specimen of his blood or at his option to provide a designated doctor with a specimen of his urine, did refuse to permit the doctor to take from him a specimen of his blood contrary to s.13(3) of the Road Traffic Act, 1994.

4

The facts as proved, admitted or agreed, or as found by the learned Circuit Court judge were as follows:-

5

(a) Garda Niall O'Sullivan stopped a motor vehicle being driven by the respondent on the 19th January, 2003, at 12:10am at Grange End, Dunshaughlin, Co. Meath, a public place. He noticed a strong smell of alcohol from the respondent's breath and his speech was slurred. Garda O'Sullivan asked him to step out of the vehicle and observed that he was unsteady on his feet. Garda O'Sullivan formed the opinion that the respondent was under the influence of an intoxicant to such an extent that he was incapable of having proper control of a mechanically propelled vehicle and that he had committed an offence under s.49(1) and ( 2) or (3) of the Road Traffic Acts, 1961– 1994. He informed the respondent of his opinion and explained to him what it meant. At 12:15am he arrested the respondent under s.49(8) of the Road Traffic Acts, 1961– 1994.

6

(b) The respondent was conveyed to Ashbourne Garda Station, arriving at 12:30am. Dr. Gujral was contacted and arrived at the station at 12:51am. Garda O'Sullivan introduced the respondent to Dr. Gujral as a person arrested under s.49(8) of the Road Traffic Acts, 1961– 1994. He introduced the doctor as a designated doctor.

7

(c) Garda O'Sullivan made a requirement of the respondent under s.13(1)(b) of the Road Traffic Acts, 1961– 1994, to permit Dr. Gujral, the designated doctor, to take from him a specimen of his blood or as his option to provide for Dr. Gujral a specimen of his urine. Garda O'Sullivan outlined the consequences of failure or refusal to comply with the requirement.

8

(d) At 12:57am the respondent opted to provide a sample of urine. Garda O'Sullivan handed Dr. Gujral a sealed box marked "U" and a jug sealed in plastic. Dr. Gujral opened the apparatus required for taking the sample and all was present and correct. Dr. Gujral handed the respondent the jug and outlined what he required. Garda O'Sullivan took the respondent to the toilet at 12:58am. At 1:07am the respondent had failed to provide a sample and asked for another minute. At 1:12am the respondent was taken to the toilet again and by 1:15am no sample had been provided.

9

(e) Garda O'Sullivan informed the respondent that he had failed to provide a urine sample and at 1:16am Garda O'Sullivan made a requirement of him under s.13(1)(b) of the Road Traffic Acts, 1961– 1994, to permit Dr. Gujral to take from him a specimen of his blood. Garda O'Sullivan outlined the consequences of his failure or refusal to comply with the requirement.

10

(f) The respondent stated that he would "give a urine sample later". At 1:17am Garda O'Sullivan formed the view that the respondent had refused to comply with his requirement. At 1:25am the respondent was returned to the cell and Dr. Gujral left the station at 2:20am.

11

(g) The respondent was subsequently charged with the offence set out in paragraph 1.

12

At the conclusion of the prosecution case, counsel for the respondent submitted that the respondent had not in fact refused to provide a blood sample and that the prosecution had made an error in deeming this to be a refusal.

13

In reply, the prosecution submitted that there was no provision requiring or authorising any delay or postponement in the taking of a specimen beyond what might reasonably be required to enable the person to exercise his statutory choice between giving a specimen of blood or a specimen of urine. It was further submitted that to escape the obligation of permitting a blood specimen to be taken, the accused must actually provide a specimen of urine, not simply agree to provide the specimen within a limited or reasonable time. Where a person opts to provide a urine sample and is unable to do so, the obligation to permit the taking of a blood specimen revives. The prosecution acknowledged that, as a matter of practice and common courtesy, the doctor and gardaí involved might afford a person concerned a reasonable interval to provide an agreed sample. However, the requirement to provide a urine sample was conterminous with the obligation to permit the extraction of a blood specimen as a matter of law. It was submitted that the time permitted to the respondent to provide a sample was reasonable.

14

The learned Circuit Court judge indicated that he did not believe that the respondent had been given a reasonable time to provide the urine sample, the judge having determined that the time allowed for this purpose was from 12:58am to 1:16am. However, he agreed to state for the opinion of this Court the following question of law:-

15

2 " (1) Was I entitled in law to hold that the respondent had not been given a reasonable time to provide a urine sample?

16

(2) If the answer to question 1 is in the affirmative, was I entitled at law to dismiss the charge?"

Relevant Statutory Provisions
17

Section 13(1) of the Road Traffic Act, 1994, provides that:-

"Where a person is arrested under section 49 (8) or 50 (10) of the Principal Act or section 12 (3), or where a person is arrested under section 53 (6), 106 (3A) or 112 (6) of the Principal Act and a member of the Garda Síochána is of opinion that the person has consumed an intoxicant, a member of the Garda Síochána may, at a Garda Síochána station, at his discretion, do either or both of the following (b) require the person either ..."

(i) to permit a designated doctor to take from the person a specimen of his blood,

18

or

19

(ii) at the option of the person, to provide for the designated doctor a specimen of his urine,

20

and if the doctor states in writing that he is unwilling, on medical grounds, to take from the person or be provided by him with the specimen to which the requirement in either of the foregoing subparagraphs related, the member may make a requirement of the person under this paragraph in relation to the specimen other than that to which the first requirement related."

21

Section 13(3) provides that:-

"...person who, following a requirement under subsection (1) (b) -"

(a) refuses or fails to comply with the requirement, or

(b) refuses or fails to comply with a requirement of a designated doctor in relation to the taking under that subsection of a specimen of blood or the provision under that subsection of a specimen of urine,

22

shall be guilty of an offence and shall be liable on summary conviction to a fine...or to imprisonment for a term not exceeding 6 months or to both."

Submissions of the Parties
23

Before this Court it was submitted by Patrick Horgan, senior counsel for the respondent, that the Act of 1994 does not set down any specific period of time within which the requirements imposed pursuant to s.13 of the Road Traffic...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT