High Court 

In re Section 2 of the Summary Jurisdiction Act 1857 and in re Section 51 of the Courts (Supplemental Provisions) Act 1961; 

Director of Public Prosecutions v Lennon

1997/2221 SS

26 June 1998 

MORRIS P: 

This matter comes before the court by way of Case Stated from John P Brophy Judge of the District Court sitting at Dunshaughlin District Court pursuant to section 2 of the Summary Jurisdiction Act, 1857 as extended by section 51 of the Courts (Supplemental Provisions) Act, 1961. 

The core facts, in so far as it is necessary to relate them for the purposes of this judgment are as follows. 

The respondent appeared before Judge Brophy charged with driving a mechanically propelled vehicle while there was present in her body a quantity of alcohol such that within three hours after so driving the concentration of alcohol in her blood did exceed a concentration of 80 milligrammes of alcohol per 100 millilitres of blood contrary to section 49(2) and 6(a) of the Road Traffic Act 1961 as inserted by section 10 of the Road Traffic Act, 1994 as amended by the Road Traffic (Amendment) Act, 1995. 

The facts proved were that the prosecuting guard stopped the respondent on the 15 of December, 1996 and spoke to her. He formed the opinion that she had consumed intoxicating liquor and required her to give a breath test by exhaling into the appropriate apparatus. The respondent gave the test and it proved positive. Having formed the opinion that the respondent was incapable of having proper control of a mechanically propelled vehicle on the occasion he arrested the respondent pursuant to the Road Traffic Act and brought her to Ashbourne Garda Station. Dr Gujral was called and in his presence the prosecuting garda informed the respondent that he required her to provide the doctor with a sample of her blood or, if she so wished, a sample of her urine. The respondent opted to give a sample of urine but declined when she was informed by Garda Traynor that she would have to furnish the urine specimen while in a cubicle which was itself in a room where Garda Traynor and Dr Gujral intended to remain. The cubicle was not fully enclosed. No Ban Garda was present and in the circumstance's the respondent did not feel that she could provide a urine sample, as she intended, and felt she was compelled to provide a sample of blood. This she duly did in accordance with the Road Traffic Act and the regulations. It emerged in cross-examination that the respondent had at first opted to give a sample of urine but changed her mind when she saw the layout of the toilet. 

The toilet was described by Garda Traynor as follows:- 

"The toilet was in a cubicle in the left rear portion of the room. There was a door in the front of the cubicle with a division on the bottom and also on the top. There was also a division between the top of the cubicle and the ceiling". 

Garda Traynor was asked whether he could see the respondent's feet and stated that he supposed he could if he got down on his hands and knees and looked under the door. There were Ban Gardai attached to Ashbourne Station but none was present at the time that the respondent was there. 

Counsel for the respondent applied at the close of the prosecution case to have the prosecution withdrawn on the basis that the respondent had first opted to provide a urine sample but had changed her mind when she saw the toilet facilities and because the male garda and male doctor remained in the room. He submitted that under the relevant regulations the respondent is entitled to a choice as to whether to furnish a blood or urine sample and that the choice must in turn be a real and effective choice. In the circumstances he submitted that the defendant was deprived of her choice and the requirements of the legislation were not accordingly met. 

The learned District Judge viewed the toilet at lunchtime. He concluded that the privacy of a female who opted to give a urine sample would not be respected if she had to furnish a sample in the cubicle while a male garda and doctor remained in the room. He felt it reasonable that a female defendant would say that she could not furnish a urine specimen in the circumstances and accordingly he concluded that the respondent had been unlawfully deprived of her choice to which she was entitled under section 13 of the 1994 Act. 

While it was not specifically stated in the case stated counsel before this court agreed that the learned District Judge dismissed the prosecution on the grounds that any evidence which may have been harvested as a result of an examination of the blood test was improperly obtained on the grounds that the respondent had been denied an opportunity to furnish a urine sample as was her right under the section. 

The question set for this court is "The opinion of the High Court is sought as to whether I was correct in law in so dismissing the charge". 

Section 13 of the Road Traffic Act 1994 is specific in that it provides that an arrested person under the section may be required by a member of An Garda Siochana, at his discretion, to either; 

"(I) to permit a designated doctor to take from the person a specimen of his blood or 

(II) at the option of the person to provide for the designated doctor a specimen of his urine". 

It is clear therefore that it is the option of the person arrested in accordance with the section to choose to provide a sample of urine instead of permitting the doctor to take a sample of blood. 

In my view it follows that if the arrested person is realistically deprived of his option to provide a sample of urine then he has been deprived of a statutory right which will render any evidence harvested as a result of the taking of the sample of blood, inadmissible. 

Accordingly the matter to be determined in this case is whether in the circumstances of the case, including the layout of the toilet facilities etc, the respondent was so deprived since she had in fact elected to provide a sample of urine. 

The respondent first opted to give a sample of urine as she was entitled to do under the section but changed her mind, in the words of the case stated, "when she saw the layout of the toilet". 

Having viewed the toilet at lunchtime the learned District Judge states as follows; 

"I reviewed the toilet and having done so I concluded that the privacy of a female who opted to give a urine sample would not be respected if she had to furnish a sample in the cubicle while a male garda and doctor remained in the room. I felt it reasonable that a female defendant would say that she could not furnish a urine sample in such circumstances". 

In my view the issue which must be considered by the Trial Judge is:- 

Did the arrested person find himself/herself deprived of the opportunity to exercise the option to provide a sample of urine by reason of the facilities or lack of facilities then made available to him/her. 

Of significance in the present case is that the respondent opted to provide a urine sample but when the circumstances in which she was required to provide it were demonstrated to her she "did not feel that she could provide a urine sample". The learned District Judge, having viewed the cubicle and the circumstances felt it was "reasonable that a female defendant would say that she could not furnish a urine specimen in such circumstances". Accordingly on the facts as found by the learned District Judge it is clear that the respondent could not provide a sample and in the circumstances in my view it must follow that she was deprived of the opportunity to exercise her option and in the circumstances evidence harvested as a result of the blood sample was improperly obtained and in violation of her statutory rights. 

I am satisfied that the question posed in paragraph 8 of the Case Stated should be answered in the affirmative.