DPP(at the suit of Garda Eugene Mulqueen) v O Connor, [2005] IEHC 371 (2005)

Docket Number:2005 560SS
Judge:Quirke J.

THE HIGH COURTRecord No. 2005 560 S.S.IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857 AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961BETWEENTHE DIRECTOR OF PUBLIC PROSECUTIONS(AT THE SUIT OF GARDA EUGENE MULQUEEN)PROSECUTOR/APPLICANTANDPAUL O'CONNORDEFENDANT/RESPONDENTJUDGMENT of Quirke J. delivered on the 16th day of November, 2005 This is a case stated by Judge James Paul McDonnell, a judge of the District Court, pursuant to s. 2 of the Summary Jurisdiction Act, 1857, as extended by s. 51 of the Courts (Supplemental Provisions) Act, 1961. It has been made on the application of the applicant who is dissatisfied with the determination of the learned District Judge as being erroneous in point of law. The case stated seeks the opinion of the High Court as to whether the District Judge was correct in law in dismissing a charge against the respondent alleging the commission of an offence contrary to the provisions of s. 49 of the Road Traffic Act, 1961. The charge was dismissed on the grounds that the applicant had failed to prove that the respondent's detention by the applicant was lawful during the investigation of the offence alleged.RELEVANT FACTS1. At a sitting of Tallaght District Court on 24th April, 2003, the respondent appeared before the learned District Judge charged with the commission of an offence pursuant to s.49(4)(6)(a) of the Road Traffic Act, 1961 as inserted by s. 10 of the Road Traffic Act, 1994.The offence alleged was that on 15th June, 2002, at Main Street, Rathfarnham in Dublin, the respondent had driven a mechanically propelled vehicle whilst 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 35 microgrammes of alcohol per 100 millilitres of breath. The respondent denied committing the offence.2. Garda Eugene Mulqueen, testifying on behalf of the applicant, in evidence, said that he had brought the respondent to Terenure Garda Station at 1.20 a.m. on 15th June, 2002, having observed him driving ten minutes earlier and formed the opinion that he had consumed an intoxicant.He introduced the respondent to Garda Shay Leonard.3. In evidence Garda Leonard stated that he brought the respondent to the "doctor's room" within Terenure Garda Station and introduced himself as the operator of an Intoximeter E.C./I.R. apparatus.He stated that he observed the respondent for a period of 20 minutes during which the respondent neither ate nor drank nor smoked any substance.It is acknowledged that the provisions of s. 13(1)(1a) and s. 17 of the Road Traffic Act, 1994, were properly and lawfully applied by Garda Leonard and that the respondent provided two specimens of his breath.The intoxilyzer which records the concentration of alcohol present in human breath, printed statements pursuant to s. 17 of the Act of 1994 which indicated that there was a concentration of 82 microgrammes of alcohol per 100 millilitres within the breath sample.4. In cross-examination Garda Leonard stated that although he had been trained in the use of the intoxilyzer he was not an expert on the machine. The case stated records in relation to Garda Leonard that:-"…He stated that the period of 20 minutes was necessary to ascertain the identity of the prisoner, and to search him and to observe him. He stated that it was a coincidence that it was a 20 minute period...

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