DPP v McNiece


Supreme Court

[S.C. No. 133 of 2003]
Director of Public Prosecutions v. McNiece
In the matter of s. 16 of the Courts of Justice 1947. Director of Public Prosecutions
Damien McNiece

Cases mentioned in this report:-

Director of Public Prosecutions v. FinnIRDLRM [2003] 1 I.R. 372; [2003] 2 I.L.R.M. 47

Road traffic offences - Drunken driving - Alcohol test - Intoxilyser - Whether sufficient evidence it was necessary to detain and observe accused for twenty minutes - Whether period of observation should commence at time of arrival in garda station - Road Traffic Act 1994 (No. 7) ss. 13 and 49.

Cur. adv. vult.

Keane C.J

14th July, 2003

I have read the judgment about to be delivered by Murray J. and I agree with it.

Denham J

I also agree with Murray J.

Murray J

This is a consultative case stated by Judge Delahunt of the Circuit Court, Dublin pursuant to the provisions of s. 16 of the Courts of Justice Act 1947. 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 s. 13(2) of the Road Traffic Act 1994.

The question

The Circuit Court Judge poses two questions of law which are as follows:-

"(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 s. 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 s. s. 13 (1)(a) of the Road Traffic Act 1994?"

The 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 relevant circumstances disclosed by that evidence) which was before the Circuit Court 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 9.05 p.m. on the 17th March, 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 driven 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 s. 49(8) of the Road Traffic Act 1961. Garda Byrne had first observed the accused at approximately 9.00 p.m. and after the arrest brought him to Blanchardstown garda station where they arrived at 9.21 p.m. He had been continuously with the accused since the arrest. Between first seeing the accused driving at 9.00 p.m. 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 of 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 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 9.37 p.m. 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 twenty minutes prior to a breath test as this would interfere with the test. At 9.37 p.m. he went to the intoxilyser room with the accused and Garda Byrne and at 9.40 p.m. he required the accused to provide two specimens of his breath by exhaling into the intoxilyser pursuant to s. 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...

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