DPP v McNiece
 IESC 41
THE SUPREME COURT
Keane C. J.
Case stated - Criminal law - Drink driving - Lawfulness of detention prior to provision of breath specimen - Road Traffic Act 1994
This is a consultative Case Stated by Her Honour Judge Katherine Delahunt of the Circuit Court, Dublin pursuant to the provisions of Section 16 of the Courts of Justice Act1947. This Case Stated arises from the prosecution of the accused for the offence of failing to provide two specimens of his breath, having been arrested on suspicion of driving with an excess quantity of alcohol, contrary to Section 13 (2) of the Road Traffic Act1994.
The learned Circuit Judge poses two questions of law which are as follows:-
a "(a) Was the evidence before me sufficient to establish that it was lawful to detain the accused for observation for a period of approximately twenty minutes prior to requiring him to provide breath specimens pursuant to Section 13 (1)(a) of the Road Traffic Act,1994?
(b) In the particular circumstances of this case where the accused had been in the company of Garda Byrne since the time of his coming to a halt to the time of his arrival at Blanchardstown garda station was it lawful for Garda Traynor to detain the Accused for a period of twenty minutes at Blanchardstown garda station in order to observe him prior to requiring him to provide the breath samples pursuant to Section 13 (1)(a) of the Road Traffic Act,1994?"
The learned Circuit Court Judge did not set out any findings of fact in the Case Stated but it is indicated that apart from the issues raised by the two questions posed all other issues have been dealt with. The Case Stated sets out the evidence (including the relevance circumstances disclosed by that evidence) which was before the Circuit Judge. I understand the Case Stated as posing the two questions concerned on the basis of that evidence and those circumstances.
The relevant evidence and circumstances set out in the Case Stated were that the accused was arrested by Garda David Byrne at 9.05pm on March 17th, 2001. Immediately prior to that the accused had been driving a motor car which had been brought to a halt by a garda patrol car driver by Garda Byrne. On speaking to and observing the accused Garda Byrne formed the opinion that the accused was under the influence of intoxicating liquor to such an extent as to render him incapable of having proper control of the motor car and he accordingly arrested him pursuant to Section 49(8) of the Road Traffic Act1961. Garda Byrne had first observed the accused at approximately 9.00pm and after the arrest brought him to Blanchardstown garda station where they arrived at 9.21pm. He had been continuously with the accused since the arrest. Between first seeing the accused driving at 9.00pm and arriving at the garda station the accused did not consume anything. On arrival at the garda station, Garda Byrne informed Garda Traynor, who was on duty in the public office, that he had arrested the accused on suspicion of driving under the influence of an excessive consumption of alcohol. Garda Byrne stated that prior to the occasion in question he had never seen an intoxilyser, (an apparatus designed for determining the concentration of alcohol in the breath), in operation. He gave evidence of the demands made on the accused by Garda Traynor to provide specimens of his breath by means by the said intoxilyser. In re-examination he stated that when driving back to the garda station with the accused in the patrol car he had been concentrating on the road.
Garda Patrick Traynor gave evidence that he was qualified in the operation of the particular intoxilyser in question. For this purpose he had undergone a three day training course under the auspices of the Medical Bureau of Road Safety and the Garda College. He was on duty when Garda David Byrne arrived at the station with the accused in custody. He explained to the accused that he would be operating the intoxilyser machine. He did not require the accused to blow into the intoxilyser machine immediately but stayed with him in the public office until 9.37pm when he went to the intoxilyser room during which interval he had observed the accused. He stated that he had done this to ensure that nothing was taken by mouth by the accused for 20 minutes prior to a breath test as this would interfere with the test. At 9.37pm he went to the intoxilyser room with the accused and Garda Byrne and at 9.40pm he required the accused to provide two specimens of his breath by exhaling into the intoxilyser pursuant to Section 13(1)(a) of the Road Traffic Act,1994. He then gave evidence of the procedures which he followed for the purpose of enabling the accused to provide two specimens of his breath including the warnings which he gave him of the consequences of a failure to comply with the request to provide such specimens. He then went on to give evidence to the effect that no or no effective breath sample was provided by the accused because the accused was not exhaling into the machine. On cross-examination he confirmed that he had undergone a three day course in respect of this particular intoxilyser and handed in the training manual which he had used on the course. He confirmed that on the course he had been instructed to observe a suspect 20 minutes prior to carrying out the test. If he had observed such a person take anything orally which might interfere with the sample he would have recommenced the twenty minute observation period.
According to the Case Stated the next witness to give evidence was Ms Pauline Levy, Chief Analyst with the Medical Bureau of Road Safety and I think it would be more convenient to quote from the Case Stated material parts of the evidence which she gave in the Circuit Court"She stated that she had a BSC in Biochemistry and an MSC in Instrument Analysis. She gave evidence that the Medical Bureau of Road Safety is the statutory body responsible under the Road Traffic Act for the approval, supply and testing of evidential breath testing instruments in the jurisdiction. She gave evidence that the instruments remained the property of the Bureau. She stated that the relevant legislation did not set out any standard in relation to the approving of the instruments and that a number of standards are considered by the Bureau in approving the instruments. The UK Home Office standards were considered as were the standards set by the OIML (the International Organisation of Legal Metrology).
The lion intoxilyser 6000 IRL machine was one of two types of machine approved for the jurisdiction. In determining whether to approve the machine consideration was given to recommendations published in 1998. The Bureau considered best international practice. Machines were commissioned directly in stations by the manufactures but were not cleared for use until such time as the Bureau had tested them. She stated that she was aware of the course taken by Garda Traynor and that the course had been devised following consultation with programme managers in the United States and the United Kingdom. She agreed that the training manual which had been handed into Court was part of the documentation from the course. In relation to the twenty minute observation period she stated that this conformed with international best scientific practice which was that a fifteen to twenty minute observation period was necessary to eliminate the possibility of mouth alcohol. She stated that the period in question should be described more accurately as a deprivation/observation period. She indicated that if someone was to take something orally or regurgitate or vomit that this would give rise to the possibility to mouth alcohol. She referred to the international literature in relation to evidential breath test instruments. She referred to the work of A. W. Jones who had been involved with breath testing apparatus in excess of forty years and his paper entitled "Physiological aspects of breath alcohol measurement" published in Alcohol Drugs and Driving Volume 6 No. 2 1990 wherein it was stated that when breath tests results are intended for a quantitative evidential purposes the measurements must not be made less than fifteen to twenty minutes after the subject has finished drinking. This time delay is necessary to allow for the dispersion of high concentrations of alcohol mixed with saliva and mucus secretions in the mouth. A copy of the paper in question was handed into Court." The witness also referred to a number of other scientific publications concerning the same subject matter which stated,inter alia, that failure to observe adequately a pre-test deprivation/observation period as one of the most common problems and lapses in forensic breath alcohol analysis. She also gave evidence that the fundamental purpose of requiring a twenty minute observation period before the test was to eliminate the “mouth alcohol” effect "…someone could claim to have had alcohol in their mouth at the time of the test and therefore the twenty minute observation/deprivation period prevented this."
She also stated that if the machine detected mouth alcohol it would produce a result recording an unsatisfactory...
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