THE HIGH COURT

1987 No. 134 S.S.

IN THE MATTER OF THE COURTS (SUPPLEMENTAL PROVISIONS)
ACT, 1961

BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS
					COMPLAINANT

AND

PATRICK GRAY

RESPONDENT

Judgment delivered by Mr. Justice O'Hanlon the 8th day of May 1987.

This is an appeal by way of case stated from the dismissal by the District Justice of a charge brought against the Defendant under Section 49 (2) and (4) (a) of the Road P       Traffic Act, 1961 as inserted by Section 10 of the Road Traffic (Amendment) Act, 1978 the charge being that he drove a mechanically propelled vehicle in a public place at a time when there was present in his body a quantity of alcohol such that within three hours after so driving the concentration of  alcohol in his blood exceeded a concentration of 100
milligrammes of alcohol per 100 millilitres of blood.

The evidence adduced at the hearing of the prosecution established that the relevant alcohol level was, in fact, 119 milligrammes per 100 millilitres of blood, but the charge was dismissed on the basis that the prosecuting Garda in effecting the arrest of the Defendant which led on to the giving of the blood sample in question, did not have reasonable grounds for forming the opinion that the Defendant had consumed an intoxicant to such an extent as to be incapable of having proper control over the motor vehicle in question.

In response to an application under Section 2 of the Summary Jurisdiction Act, 1857, as extended by Section 51 of the Courts (Supplemental Provisions) Act, 1961, the opinion of the High Court is now sought as to whether the District Justice was right in law in dismissing the said complaint.

The Case Stated recites the relevant evidence given by Garda Eugene Gallagher as to the opinion formed by him prior to the arrest of the Defendant and as to the facts which caused him to form that opinion.  His evidence was to the effect that at approximately 12.30 a.m. on the 12th April, 1986, while driving a Garda patrol car in the Cabra area he noticed the Defendant's car being drive? from side to side on the road; he followed the car and caused it to be brought to a halt; when the driver got out of the car he noticed that he had a smell of alcohol from his breath, that he was unsteady on his feet, and that when asked to open the boot of the car he was unable to do so.

The learned District Justice took the view that there could have been many reasons for the Defendant's inability to open the boot, other than the effects of consumption of alcohol. As regards the manner in which the vehicle was being driven on the road, he "discounted" this evidence because he was dissatisfied with answers given by the Garda to questions put to him in cross-examination as to the distance covered by him in following the Defendant's car, the speed at which he was travelling, and the length of time spent in covering this distance.  He concluded that these calculations led to a mathematical inaccuracy. As regards the evidence that the Defendant was unsteady on his feet, the District Justice concluded that "after driving everyone is unsteady to a greater
or lesser extent on their feet on alighting from a motor vehicle."  On these grounds he concluded that the Garda did not act reasonably in forming the opinion to which he testified; that the arrest made on the faith of that opinion was unlawful m       and that the charge should be dismissed.

It appears to me on reading the Case Stated that it discloses an error of law in the manner in which the learned District Justice evaluated the evidence. What he was required to determine was whether the Garda had arrived at an opinion which was reasonable in all the circumstances.  As stated by Mr. Justice Costello in Hobbs  .v. Hurley, (unreported 10th June 1980): "The opinion arrived at must, of course, be a reasonable one, and must be one which results from an honest belief come to after facts have been ascertained and       considered." The learned District Justice appears to me to have rejected the evidence of the Garda as unreasonable because it appeared to him (the District Justice) that there were other possible explanations for all the features of the Defendant's conduct which were described by the Garda in evidence, not necessarily involving over-consumption of alcohol.  This, however, could be put forward in every case, no matter what factual evidence led up to an arrest. A person charged may have bloodshot eyes because he has been deprived of sleep for days on end. His speech may be slurred because he has recently undergone complicated dental treatment.  He may fall down on the road because of a latent, neurological condition having nothing to do with the consumption of alcohol.  The list is endless. The fact that a Defendant may have a completely convincing explanation for all the matters observed by an arresting Garda does not, in my opinion, deprive the arrest of its validity if it was objectively reasonable for the Garda to form the opinion that the person concerned is committing or has committed an offence under the section.	

In the present case the learned District Justice appears to have accepted the Garda evidence that the Defendant smelt of  alcohol, that he was unsteady on his feet when getting out of  the car, and that he had difficulty in opening the boot of the car, or was unable to do so. His grounds for "discounting" the Garda evidence that the car was being driven from side to side appear to me to be unreasonable.  It is a common, but not very
impressive or convincing ploy in road traffic cases, civil or criminal, to try to pin witnesses down to distances covered, and speed of vehicles and then to say that the sums do not add  up so that the evidence of the witness must be regarded as unreliable.

I am of opinion that the learned District Justice erred in law in concluding - as he appears to have done - that the possibility of innocent explanations for the matter which gave
rise to the Garda's opinion was sufficient to invalidate that opinion.  I would also hold that the findings of fact made by the learned District Justice on which he based his decision were wholly unsupported by evidence insofar as I can glean from the recital in the Case stated, and on this ground also an error in point of law arose.

On the evidence given, even having regard to the criticisms made regarding same by the District Justice, I am satisfied that the Garda had ample grounds for forming the opinion which he says he formed, that the Defendant was incapable by reason of consumption of intoxicant of having proper control of the vehicle, and that he did form such opinion, and was reasonable in doing so.

As the bona fides of the Garda has been queried in Paragraph 8 of the Case stated, it is relevant to note that the subsequent blood test of the Defendant vindicated the opinion of the Garda to this extent at least, that it showed that the concentration of alcohol in the Defendant's blood exceeded the permitted limit for a person proposing to drive a mechanically propelled vehicle.

In my opinion the District Justice was wrong in law in dismissing the charge, and should, on the evidence as outlined in the Case Stated, convict the Defendant of the offence charged.

R.J. O'HANLON

8th May, 1987.
 
Counsel for the D.P.P.	Susan Denham, BL  (instructed by the Chief State Solicitor).

Counsel for the Respondent 		Adrian Mannering (instructed by… 	

Cases and Materials referred to:

D.P.P .v. Donohue (1987) ILRM 129

D.P.P. .v. Gilmore (1981) ILRM 102

Hobbs  .v. Hurley (Costello J., 10th June 1980).