DPP v Slattery
 IEHC 442
THE HIGH COURT
[Record No. 2016 834 SS]
Crime & Sentencing – S. 52(1) of the Courts (Supplemental Provisions) Act 1961 – Case stated – Drunk driving – Road Traffic Act 2010 – Lack of challenge to garda opinion
Facts: The present case came by way of a case stated from the District Judge. The accused who was charged for drunken driving claimed that the failure of the named garda to ask him as to whether he had taken ‘nil by mouth’ in the 20 minutes prior to administering a roadside breath test was fatal to the prosecution case and formation of the opinion of the said garda that the accused had committed an offence under s. 4 of the Road Traffic Act 2010. The District Judge formulated three questions for the High Court for its opinion, namely whether the garda was required to ask the said question prior to administering the roadside breath test; whether the garda was required to ask the accused about anything that he had drunk in the previous 20 minutes; and if the answers to both the questions were in the affirmative, was the District Judge obligated to dismiss the charges under s. 4?
Mr. Justice Binchy held that the learned District Judge must accept the opinion of the garda and thus, the answers to the first two questions were moot. The Court found that the garda was not under any obligation to ask the subject question to the accused. The Court noted that the said garda gave the basis of his opinion, which was the result of the breath test, and since he was not challenged about the reasonableness or bona fides of that opinion, that opinion could not be set aside.
This case comes before the Court by way of consultative case stated from Judge Mary Devins of the District Court, pursuant to section 52(1) of the Courts (Supplemental Provisions) Act 1961. The net issue is whether a garda must ask the accused whether he has taken ‘nil by mouth’ in the last 20 minutes, prior to administering a road-side breath test.
The accused was charged with the offence colloquially referred to as “drunk driving” contrary to sections 4(3) (a) and (5) of the Road Traffic Act 2010 (the ‘act of 2010’). The matter came on for hearing before the District Court on 7th October 2014. The evidence before the District Judge, as described in the case stated, was that on 17th November 2013, Garda Kenny was performing authorised mandatory alcohol testing at a checkpoint at Hazelhill, Ballyhaunis, Co. Mayo. At 1.25 a.m. Garda Kenny observed a Toyota Land Cruiser, driven by the accused, approaching the checkpoint at speed and Garda Kenny signalled the vehicle to stop. The vehicle came to an abrupt stop. Garda Kenny informed the accused that he was conducting mandatory alcohol testing and that he required the accused to provide a sample of his breath.
Garda Kenny invoked section 10(4) of the act of 2010, and made a lawful requirement of the accused to provide a breath specimen by exhaling into the Draeger Alcotest unit (‘the apparatus’). Garda Kenny also outlined to the accused that a failure or refusal to do so is an offence and outlined the penalties for failing to comply. At 1.30 a.m. the accused provided a breath sample by exhaling into the apparatus. The sample returned a fail reading and Garda Kenny showed the result to the accused. Garda Kenny then formed the opinion that the accused had consumed an intoxicant to such an extent so as to render him incapable of having proper control of a vehicle in a public place and that he was committing an offence contrary to section 4 of the Road Traffic Act, 1961 to 2010, as amended.
The accused was arrested, cautioned and conveyed to Ballyhaunis Garda station and no issues arise from his arrest and detention. While in custody, the accused provided a urine sample to a designated doctor. The sample was analysed by the Medical Bureau of Road Safety and the result showed a concentration of 281 milligrammes of alcohol per 100 millilitres of urine and this certificate was presented to the District Court.
Upon the completion of the evidence in the District Court, the solicitor acting for the accused submitted that the accused had not been asked whether or not he had taken ‘nil by mouth’ for the 20 minutes prior to the administration of the road-side breath test, in accordance with the instructions for use of the apparatus (the ‘instructions’). Although I was not expressly informed as to the nature of any application made or of any legal submissions made by the solicitor arising out of his submission on the evidence, it seems likely that he applied to have the charges dismissed on the grounds that the failure of the garda to put this question to the accused was fatal to the prosecution case, on the basis that it is a pre-requisite to the administration of the breath test, and therefore also as to the formation of an opinion by the garda consequent on the result of the breath test that the accused has committed an offence under section 4 of the act of 2010. The instructions were not however, entered into evidence before the district court. The matter was adjourned to 2nd December 2014, when the issue was addressed again. On that date, a Superintendent Doherty appeared for the prosecution and referred the court to the case of as authority for the proposition that a garda is under no obligation to inquire of a person stopped at a checkpoint whether or not he has consumed ‘nil by mouth’ for the twenty minutes prior to administering the breath test, and in any case would have no power to compel a person to answer the question. He argued that the bona fide opinion of the garda was sufficient for an arrest under section 49(8) of the Road Traffic Act 1961, as inserted by s.10 of the Road Traffic Act 1994, for an offence under s.49( 2) or (3) of the Act of 1961, and that the same standard applied to the opinion required to be formed by a garda under section 4(8) of the Act of 2010. Superintendent Doherty relied on the English case of , in support of this proposition, and I refer to this in more detail below.
The District Judge stated the following questions to the High Court by way of consultative case stated:-
(i) ‘Before administering a roadside breath test under Section 10 of the Road Traffic Act 1961-2010, is a garda required to observe an accused for 20 minutes, to ensure he has consumed nil by mouth;
(ii) Is the garda required to ask the accused if he has had anything to drink in the previous 20 minutes;
(iii) If the answer to both (i) and (ii) is ‘yes’, am I obliged to dismiss the charge under Section 4(3) of the Road Traffic Act 2010 against the accused.’
Counsel for the accused informed the Court that the 20 minute period referred to in the questions stated by the District Judge are derived from the Drager Alcotest 6510 Operating Instructions i.e. the instructions. According to counsel for the accused, the apparatus has been approved for use by the Medical Bureau of Road Safety (‘the MBRS) since 21st December 2004, and that the instructions were also approved by the MBRS at that time. Counsel for the accused explained how the apparatus operates: the device contains an electrochemical fuel cell alcohol sensor, which consists of a plastic housing, a membrane with positive and negative electrodes and platinum leads. As alcohol gas (in the breath sample) passes through the cell, it causes a chemical reaction, which itself results in a voltage change. The voltage change can be converted to a breath alcohol concentration, which in turn is converted to a blood alcohol concentration.
Counsel for the accused relies on the instructions, and in particular on the following extracts:-
‘Follow the instructions for Use
Any use of the instrument requires [full] understanding and [strict] observation of these instructions.
Requirements of the person to be tested
At least 20 minutes should elapse between the person's last drink and before using the device.
Residual alcohol in the mouth can distort the measurement. Aromatic drinks (e.g. fruit juice), mouth sprays containing alcohol, medicines can interfere with measurements. Rinsing the mouth with water or non-alcoholic drink does not reduce the waiting period.’
In respect of the preliminary breath test, it is submitted that s.10 of the Road Traffic Act 2010, confers a power on An Garda Síochána to conduct checkpoints and to carry out mandatory alcohol testing. Counsel for the accused seeks to distinguish the decision of relied on by the prosecutor in the District Court. In that case the accused underwent preliminary breath testing using an Alcotest (R) 80. The instructions accompanying that device provided for a 20 minute period of time between the person's last drink and the carrying out of the test. The House of Lords held that if a police officer was acting bona fide and reasonably, and had no reason to suspect the consumption of alcohol within the 20 minute period, the test is not invalidated by proof at the trial that the accused had a drink within the 20 minute period, nor would the arrest be invalidated. Counsel for the accused submits that this case should be distinguished on the basis that the instructions accompanying the device in that case had not been approved by the Home Secretary when the device was statutorily approved for use, and therefore did not form part of the device, whereas in this case, the MBRS have approved the apparatus and the instructions pursuant to statute i.e. s.26(2)(e)(i) and (ii) of the Act of 2010. On this basis, it is submitted on behalf of the accused that since the apparatus is provided by the...
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