High Court 

In re Section 52 of the Courts (Supplemental Provisions) Act 1961 and in re a Consultative Case Stated; 

Director of Public Prosecutions v MacMathuna

1998/701 SS

24 July 1998 

 
MORRIS P: 

This matter comes before the court as a Consultative Case Stated from District Judge Mary Fahy assigned to the Dublin Metropolitan District Number 52. It arises from proceedings which came before the learned District Judge on the 7 October, 1997. The accused having been summonsed to appear before the court by means of a summons. 

The accused appeared charged that he did on the 28 of September, 1996 at Parnell Street, Dublin drive a mechanically propelled vehicle in a public place while there was present in his body a quantity of alcohol such that within three hours before so driving the concentration of alcohol in his urine exceeded the concentration of 107 milligrammes of alcohol per 100 millilitres of urine contrary to section 49(3) and (6A) of the Road Traffic Act, 1961 as inserted by section 10 of the Road Traffic Act, 1994. 

The prosecuting garda gave evidence that at approximately 1.35 am on the morning of the 28 of September, 1996 he was on duty in O'Connell Street, Dublin and he said that he saw a motor vehicle drive down Parnell Street the wrong way. He stopped the driver of the vehicle and asked him to step out of the vehicle and he got a smell of intoxicating liquor from the driver's breath. He formed the opinion that the driver of the vehicle, who was the accused had consumed an intoxicant. He had not got an alcolyser with him so he contacted the garda unit by radio to obtain the alcolyser. He invoked section 12(1)(b) of the Road Traffic Act, 1994 by requiring that the accused would comply with that section. 

This section provides as follows; 

12(1) "Whenever a member of An Garda Siochana is of opinion that a person in charge of a mechanically propelled vehicle in a public place has consumed intoxicating liquor, he may require the person; 

(a) . . . 

(b) to accompany him to a place (including a vehicle) at or in the vicinity of that public place and there require him to provide, by exhaling into such an apparatus, a specimen of his breath and may indicate the manner in which he is to comply with this requirement". 

The prosecuting garda informed the accused that failure to comply with the requirement to supply a breath test would lead to a fine or imprisonment. The alcolyser arrived after fourteen minutes and the test was administered by the prosecuting garda. The test proved positive. In fact the garda became aware that the apparatus had passed its "best before" date and accordingly its findings are of no relevance. 

The prosecuting garda stated that he then formed the opinion due to his observation of the accused that he was incapable of having proper control of a mechanically propelled vehicle and arrested him under the relevant section. He informed the accused that he was arresting him for drunken driving. He was taken to the Garda Station where a specimen was taken from the accused. 

The submission made on behalf of the accused by his solicitor Mr Fahy in the District Court was that Garda O'Connor had invoked the incorrect statutory power when he invoked section 12(1)(b) of the 1994 Act. He submitted that he should have invoked section 12(1)(c). This section provides that where a garda in these circumstances does not have the alcolyser with him he may require that the accused; 

". . . remain at that place in his presence or in the presence of another member of an Garda Siochana until such an apparatus becomes available to him (but he shall not require him to so remain for more than one hour) . . ." 

It is submitted on the accused's behalf since the accused was required to wait at the place while the alcolyser was arriving, a period of 14 minutes, he was unlawfully detained during this period and since the opinion as to the accused's condition given by the garda was based upon evidence which he garnered during his observation of the accused during this period it should not have been accepted by the court, having been obtained in violation of his constitutional rights. 

The opinion of the court is sought on the following questions of law; 

(a) Whether the failure of the garda to invoke section 12(1)(c) render the requirement of the defendant to remain at the scene unlawful and in violation of Article 40(4)(1) Bunreacht na hEireann 1937 so as to taint the arrest under section 49(a) with constitutionality and render it invalid. 

(b) Whether the observations of the garda grounding his opinion to arrest under section 49(8) of the Road Traffic Act 1994 are inadmissible in evidence by reason of the failure of the garda to invoke the appropriate statutory power under section 12(1)(c) of the Road Traffic Act, 1994 to require the accused to remain at the scene thus rendering that period illegal and unconstitutional. 

The validity of the submission made on behalf of the accused by his solicitor depends entirely on the assertion that Garda O'Connor "invoked the incorrect statutory power". 

There are three powers given to the garda under section 12. 

Sub-section (a) provides for the administration of the test by requiring the person to exhale into the apparatus. 

Sub-paragraph (b), that was invoked by the garda in this case, requires the person to accompany the garda to a place (including a vehicle) at or in the vicinity and there to carry out the test by exhaling into the apparatus. 

Sub-paragraph (c), provides for circumstances in which the garda does not have the apparatus with him. It enables the garda to require the accused to remain at the place for up to 1 hour and require him to carry out the test when the apparatus becomes available. 

On the occasion in question Garda O'Connor did not have the apparatus in his possession. He could clearly have invoked sub-paragraph (c) but he did not do so. He invoked sub-paragraph (b). There was no reason why he should not have done so. In the ordinary way this would contemplate the immediate departure of the garda and the accused to the place or a vehicle at which the testis to be administered however the fundamental question in my view is whether a delay in carrying out this procedure nullifies the demand. 

In my view one can readily visualise circumstances in which a garda will be legitimately delayed in performing the test or departing to the place at which the test is to be carried out. Such a cause might be a circumstance in which the garda is required to perform a more urgent duty or circumstances might be such as to make the carrying out of the test impossible. For instance the presence of an unruly crowd. 

In my view delay by the garda in such circumstances could not visiate the demand. It remains a valid demand. The test must be one of which the reason for the delay was justified. If the delay is reasonably accounted for then the demand remains valid and the accused is required to comply with the demand notwithstanding the delay. If he fails to do so he runs the risk of being found guilty of an offence under sub-section (2) of section 12 with the attending right of the garda to arrest without warrant in those circumstances. 

In the instant case the cause for the delay was the arrival of the alcolyser. This delay amounted to 14 minutes. It is clear that the garda could not administer the test without the alcolyser and in my view this constitutes reasonable cause for the delay which the accused was required to accept and tolerate as part of his obligation to comply with the garda's request. 

While I readily accept that the circumstances of the case would more readily lend themselves to the exercise of the power which a member of An Garda Siochana possesses under sub-section (c) I do not believe that this is the deciding factor in this case. Garda O'Connor in the circumstances was and remained entitled to make the demand under sub-section (b) which demand the accused was obliged to comply with. In my view providing that there is legitimate cause for the delay, which I believe that there was in this case, this delay does not absolve the accused from the obligation to comply with the garda request. 

Accordingly in my view the question set at paragraph 7 of the Case Stated should be answered as follows; 

(a) No 

(b) No 

At the hearing before this court counsel on behalf of the accused raised as an issue the fact that a garda is entitled to invoke section 12(1)(b) if but only if he is of opinion that the person in charge of a mechanically propelled vehicle has consumed intoxicating liquor whereas in this case Garda O'Connor stated in paragraph 4 of the case to advise that "he formed the opinion that the driver who was the accused had consumed an intoxicant". Counsel submitted that this opinion did not entitle Garda O'Connor to make the demands of the accused. 

This argument was not made in the District Court and accordingly in my view it forms no part of the Consultative Case Stated.