The Director of Public Prosecutions (At the Suit of Garda Prenderville) v Patrick Foley

• Jurisdiction: Ireland
• Judge: Ms Justice Miriam O'Regan
• Judgment Date: 20 December 2023
• Neutral Citation: [2023] IEHC 734
• Court: High Court
• Docket Number: [Record No. 2023/60SS]

In the Matter of Section 52(1) of the Courts (Supplemental Provisions) ACT 1961

Between

The Director of Public Prosecutions (At the Suit of Garda Prenderville)

Prosecutor

and

Patrick Foley

Defendant

[2023] IEHC 734

[Record No. 2023/60SS]

THE HIGH COURT

JUDGMENT of Ms Justice Miriam O'Regan delivered on the 20 December 2023 .

1 . This is a consultative case stated from the District Court pursuant to the above-mentioned provisions dated 12 December 2022 wherein the District Justice poses the following question for the High Court:-

Whether the breath test is invalid thereby rendering the arrest unlawful:-

(a) in circumstances where the garda administering the test acting bona fide, but in ignorance of the manufacturer's instructions, failed to delay the giving of the test to the driver, when he had been informed by the defendant he had drink taken prior to driving albeit with no time of drinking given and no inquiry as to the time of drinking was made by the garda, and

(b) in circumstances where the garda was aware and accepted the defendant was coming from an address five minutes from where he was stopped.

2 . For the reasons hereinafter set out I would answer no to both questions above.

Background

3 . The following detail has been furnished in the consultative case stated:-

• a. The proceedings involved a prosecution under s.4(4)(a) and (5) of the Road Traffic Act 2010 alleging that on 02 August 2021 at South Douglas Road Cork the defendant was driving a vehicle registration number 06 TN 2595 in a public place and there was present in his body a quantity of alcohol such that within three hours after so driving the concentration of alcohol in his breath exceeded a concentration of 22mlgs of alcohol per 100mlg of breath to wit 60mlg of alcohol per 100mlg of breath.

• b. The matter was heard on 30 May 2022 and the evidence adduced on behalf of both the prosecutor and the defendant without a final adjudication nor decision on a question of law on that date.

• c. The evidence given was to the effect that on 02 August 2021 the garda observed the defendant driving at speed and required him to stop. When the garda approached the vehicle he noted a strong smell of intoxicating liquor, the defendant's speech was somewhat slurred and his eyes somewhat glassy, as a consequence he perceived the defendant had committed an offence and demanded a roadside breach specimen under s.9(2) of the 2010 Act. The sample was obtained and the result was “fail” whereupon the garda then formed the opinion that the defendant had consumed an intoxicant to the extent he could not have proper control of the vehicle.

• d. On cross-examination the garda accepted the defendant voluntarily informed him when stopped that he had consumed a few alcoholic drinks before driving but did not state specifically what time he had consumed the alcohol and the garda made no inquiry as to time. The garda accepted the defendant was coming from a property five minutes from where he was stopped and confirmed he had only formed the opinion that the defendant was incapable following the failed result aforesaid. The garda confirmed that he was not aware of the instructions for use of the Dragor equipment used to take and analyse the breath sample to the effect that it required that at least twenty minutes should elapse between the person's last drink and before using the device.

• e. On behalf of the defendant, it was submitted that based on the cases of The DPP v Quirke [2003] IEHC 141 and the UK decision in Re Attorney General's Reference No. 2 of 1974 the Garda knew or had reason to suppose the defendant had consumed alcohol in the preceding twenty minutes and should have afforded him a twenty minute observation period before administering the breath test. It was further argued that the lack of knowledge of the machine's instructions rendered the arrest, following the failed roadside test, unlawful.

• f. The State submitted that the garda had no authority to compel a person to answer a question as to when he last consumed alcohol pursuant to the Quirke, above, jurisprudence and the State also relied on and quoted from the case of DPP v Slattery [2017] IEHC 442. The State also relied on the case of DPP v Feghiu [2020] IEHC 235.

• g. On behalf of the defendant, it was admitted that there is no provision in law to wait the twenty minute period as the period is purely borne out of the instruction manual. On behalf of the defendant it was argued that the twenty minute wait requirement is a necessary proof in s.4(4) jurisprudence because of the Supreme Court decision in DPP v McNiece [2023] IESC 41. The defence further argued that the caselaw relied upon by the State merely apply the principles set out in Quirke to the effect that it is only when a garda knows or has reason to suppose that a suspect has consumed alcohol in the preceding twenty minutes must they wait the twenty-minute period at the roadside.

Jurisprudence

4 . The following jurisprudence has been engaged by the parties:-

• a. DPP v Carey [1970] AC 1072, a UK decision. In that matter there was a finding of fact that the accused had taken drink and smoked within twenty minutes which was unknown to the constable. In the lower courts it was found that there was an invalid arrest by failure to comply with the instructions of the device used. In the House of Lords, it was held that if there is no knowledge or reasonable cause to suspect the accused had within twenty minutes been drinking or smoking a test result is valid evidence and admissible.

• b. Re Attorney General's reference no. 2 of 1974, UK Court of Appeal held that because the accused had smoked two minutes before the test it was invalid to ground an arrest and the bona fide of the constable did not excuse the lack of knowledge of instruction on the equipment used.

• c. In the Quirke decision (Ó Caoimh J) the District Judge had upheld the...