DPP -v- McDonagh, [2008] IESC 57 (2008)

Docket Number:173/08
Party Name:DPP, McDonagh
Judge:Denham J.


[Appeal No: 173/2006]

Denham J.

Macken J.

Finnegan J.


The Director of Public Prosecutions



Frank McDonagh


Judgment delivered the 16th day of October, 2008 by Denham J.

  1. Case Stated

    This is a consultative case stated from Her Honour Judge Doirbhile Flanagan, Judge of the Circuit Court, of the Dublin Circuit, dated the 28th April, 2006, seeking the determination of the Court on two questions.

  2. The opinion of the Court is sought on the following:-

    (i) On the evidence adduced am I entitled to hold that pursuant to section 13(1)(a) of the Road Traffic Act, 1994, there is no bar on a member of An Garda Síochána making a requirement under section 13(1)(a) of the Road Traffic Act, 1994 of an arrested person to provide two specimens of their breath, notwithstanding the provision by that arrested person of one incomplete breath specimen within a previous incomplete test result;

    (ii) Whether, in the circumstances of this case, the section 17 Certificate was admissible in evidence against the accused.

  3. The facts proved, or admitted, or agreed, and as found by the learned trial judge, were as follows:-

    "(a) (i) Garda Martha Cleary was a member of An Garda Síochána, stationed at Dun Laoghaire Garda station. On the 9th February 2002, she took up duty at 14.00p.m. working the 14.00p.m.-22.00 p.m. shift. She was an observer in the official patrol car accompanied by Garda Mark Russell. At approximately 20.30 p.m. as a result of a call, she was made aware that a motor vehicle, registration number 02 D 5657 was allegedly being driven in a dangerous manner. She observed the vehicle 02 D 5657 on Coliemore Road, Dalkey, which is a public place, driving slowly in a bid to come to a halt on Coliemore Road. The vehicle came to a halt in the centre of the road. She spoke to the driver who gave his name and address as Frank McDonagh, 7, Avondale Road, Killiney, County Dublin and a date of birth of the 5th of February 1957.

    (ii) Garda Cleary stated that, on speaking to the driver, she noticed a strong odour of intoxicating liquor coming from Mr McDonagh whose eyes were also bloodshot. She stated that he appeared to be slumped over in a drowsy manner. His radio was also switched on to its maximum volume and she asked Mr McDonagh to turn off the radio, which he did. She asked Mr McDonagh where he was coming from and his reply was that he had driven from the Forty Foot Bar in Dun Laoghaire. She asked Mr McDonagh whether he had been drinking, he replied "red wine with his friend"; (iii) Garda Martha Cleary stated that she formed the opinion that Frank McDonagh was incapable of having proper control of a mechanically propelled vehicle in a public place due to the consumption of an intoxicant and had subsequently committed an offence, contrary to Section 49(1), (2), (3) or (4) of the Road Traffic Act, 1961/1994. She stated that she informed Mr McDonagh of her opinion. Garda Martha Cleary arrested Mr McDonagh at 21.00 p.m. on the 9th of February 2002 pursuant to the provisions of Section 49(8) of the Road Traffic Act, 1961 in the presence of Garda Mark Russell for an offence contrary to Section 49(1), (2), (3) or (4) of the Road Traffic Act, 1961/1994. She cautioned Mr McDonagh as follows:-

    "You are not obliged to say anything unless you wish to do so, but whatever you do say, will be taken down in writing and may be given in evidence."

    Mr McDonagh made no reply after caution. She then explained, in ordinary language to Mr McDonagh, that she was arresting him for drunken driving.

    (iv) Garda Martha Cleary then conveyed Mr McDonagh to Dun Laoghaire Garda Station along with Garda Mark Russell where they arrived at 21.15 p.m. She introduced Frank McDonagh to the Member in Charge, Garda John Cashman and was present when Mr McDonagh's details were entered into the custody record and when he was handed Form C72S, Notice of Rights. (v) She stated that at 21.20 p.m. she took Frank McDonagh to an interview room for the purpose of carrying out an evidential breath test. In the interview room, she explained to Mr McDonagh that he was to undergo a period of observation for 20 minutes which was for the purpose of the evidential breath test. She stated that during this time Mr McDonagh consumed nil by mouth. She explained that if a person consumed something during this time, it may effect the operation of the apparatus which was a machine designed to conduct a breath test.

    (vi) Garda Martha Cleary later informed Mr McDonagh that they were going to move from the interview room to the doctor's room for the purpose of conducting the evidential breath test. She stated that Mr McDonagh was under the influence of an intoxicant and it took her some minutes to get him to understand that they had to move from one room to another. At 21.50 p.m. she took Mr McDonagh to the doctor's room for the purpose of conducting an evidential breath test along with student Garda John Hubbard who was present with Mr McDonagh's consent. (vii) Garda Cleary entered Mr McDonagh's details into the intoxilyzer apparatus. She noted the temperature and humidity as 23° and 63% respectively. At approximately 21.47 p.m. she made a requirement of Mr McDonagh, having informed him that she was of the opinion that he had consumed an intoxicant. She made a requirement under Section 13(1)(a) of the Road Traffic Act, 1994 for Mr McDonagh to provide two specimens of his breath by exhaling into the apparatus designed for determining the concentration of alcohol in the breath. She stated that a failure or refusal to comply with her requirement or failure or refusal to comply with her requirement in the manner outlined by her...

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