Supreme Court of Ireland Decisions

You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> D.P.P. (O'Driscoll) v. O'Connor [1999] IESC 35; [2000] 1 ILRM 60 (9th March, 1999)
URL: http://www.bailii.org/ie/cases/IESC/1999/35.html
Cite as: [1999] IESC 35, [2000] 1 ILRM 60

[New search] [Printable RTF version] [Help]

D.P.P. (O'Driscoll) v. O'Connor [1999] IESC 35; [2000] 1 ILRM 60 (9th March, 1999)

THE SUPREME COURT

O ‘FLAHERTY J

BARRINGTON J

KEANE J

MURPHY J

BARRON J

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857 AND IN THE MATTER OF SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS

(AT THE SUIT OF GARDA ANTHONY O’DRISCOLL)

APPELLANT

AND

NOEL O’CONNOR

RESPONDENT

JUDGMENT OF MR JUSTICE FRANCIS D MURPHY DELIVERED THE 9TH DAY OF MARCH 1999 [Nem. Diss.]

1. The question of law - if it is a question of law - which arises in this case is the determination of the time limit within which a urine sample must be provided in accordance with the requirements of section 13(1)(b)(ii) of the Road Traffic Act 1994.

2. The question arises from a case stated by Joseph Mangan, a Judge of the District Court, on the 22nd day of January 1997 pursuant to the above entitled enactments.

3. The factual background to the issue as determined by the learned Judge is as follows. At the sitting of the District Court on the 8th February 1996 the Respondent. Noel O’Connor, attended to answer the charge of the Director that on the 17th September 1995 at Herbert Place in the City of Dublin that the Respondent had driven a mechanically propelled vehicle in a public place 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 blood exceeded a concentration of 80mg of alcohol per 100ml of blood. The facts proved or admitted are set out fully in the case stated but may be summarised as follows.

4. The Garda at whose suit the prosecution was brought, Garda O’Driscoll, gave evidence that on the 17th September 1995 he was on duty in a patrol car. At 1.40am he observed a motor car stopped at the traffic lights at Baggot Street Bridge. The vehicle failed to move off when the lights changed to green. The lights changed to red and when the green light came back on the car again failed to move off. Garda O’Driscoll got out of the patrol car and spoke to the driver. The Garda noticed that there was a very strong smell of alcohol from the car. The Respondent got out from the car. He was unsteady on his feet. He admitted to having some drinks. At 1.45 am the Garda arrested the Respondent and brought him to Harcourt Terrace Garda Station where they arrived at 1.50am. Dr James Maloney, a designated doctor, was contacted at 1.5l am. Dr Maloney arrived at the station at 2.35am. At 2.40am Garda O’Driscoll informed the Respondent that he was requiring him to permit Dr Maloney to take a specimen of his blood or at his, the Respondent’s, option to provide a specimen of urine.

5. Under cross-examination Garda O’Driscoll stated that initially the Respondent had opted to

-2-

provide a urine sample. This was at approximately 2.40am. During the next fifteen minutes he was unable to do so. The Garda agreed that the Respondent sought to be co-operative but was extremely nervous. The Respondent was unable to provide a urine sample. After fifteen minutes the Doctor, who was admittedly under pressure to attend at another garda station, concluded that the Respondent was not going to be able to provide a urine sample and in those circumstances Garda O’Driscoll informed the Respondent he would have to provide a blood specimen which the Respondent agreed to do. The blood specimen was taken at 3.04am and completed at 3.l0am.

6. In those circumstances the solicitor on behalf of the Respondent submitted, among other things, that the Respondent had opted to provide urine and not blood and that he the Respondent had fully complied with both the Garda and the Doctor’s requirement in this regard. He maintained that once his client opted for urine there was no obligation on him to provide a blood specimen.

7. The learned Judge of the District Court dismissed the case against the Respondent on the grounds which he stated as follows:-

“I was of the view th at the Respondent was not given a reasonable opportunity to provide a urine sample. ft therefore followed that the subsequent “option “for blood was not a proper option. In this regard, I noted that the Respondent had been allowed twenty-two minutes at the outset. I was of the view that the Respondent should have been allotted a minimum of thirty minutes within which to provide a urine specimen.”

-3-

8. At the request of the Director of Public Prosecutions the Judge of the District Court sought the opinion of the High Court as to whether he was correct in law.

9. In his judgment delivered the 10th day of July 1998 Mr Justice Geoghegan concluded that the learned Judge Could not be said to have fallen into any error, in point of law “. The learned Judge of the High Court concluded that:-

I am quite certain that he (the District Judge) was not holding as a matter of law that in every case thirty minutes has to be allowed to provide a urine specimen. Such a proposition would, in my view, be clear/v unstateable and if it had been the intention of the Oireachtas the section would have spec fled it. When a District Judge makes the reference to thirty minutes it is in the context of the other matters which he refers to including above all the pressure which was apparently exerted on the Respondent because of the doctor ‘s other engagements. The Judge is therefore talking of thirty minutes having regard to all the surrounding circumstances in that particular case. I could not possibly say that such a view is not open for him to take and still less could I say that such a view was in any way perverse having regard to these surrounding factors and therefore, in my opinion, there is no question of law to be determined by this Court.”

10. I must reluctantly disagree with the learned Judge of the High Court.

-4-

Where section 13 is applicable it empowers a member of the Garda Siochana primarily to require the person concerned to permit a designated doctor to take from that person a specimen of his blood. The provision of a specimen of urine is a secondary or alternative requirement which may be substituted at the option of the person concerned. (See DPP (Coughlan) v. Swan [1994] I ILRM 314) Whilst it may be expected that the designated doctor would act with appropriate consideration and courtesy for the person from whom a specimen of blood was to be taken, there is no provision in the section requiring or authorising any delay or postponement in the taking of the specimen beyond what might reasonably be required to enable the person to exercise his statutory choice between giving a specimen of blood or a specimen of urine. Indeed the taking of a sample of either class is always in the context that the operation must be completed within three hours from the time at which the person concerned was driving the motor car. To that extent at least the passage of time is a factor to be borne in mind. If there is no moratorium on the taking of a blood specimen then there can be no statutory requirement for the allowance of time for the provision of a urine specimen. To escape the obligation of permitting a blood specimen to be taken the person concerned must actually provide a specimen of urine: not simply agree to provide such a specimen within a limited or reasonable time. Of course it can be appreciated that the person from whom a specimen is required may not be able to provide the urine sample immediately.

11. It is not then a question of how long a doctor and the gardai must wait. The legal consequence. as explained in DPP v. Swan (above) , is that, where a person opts to provide a urine sample and is unable to do so the obligation to permit the taking of a blood specimen revives. The election to provide a urine sample is not exercised by agreeing to provide such a sample but by the provision of it. So far from an entitlement to thirty minutes or fifteen

-5-

minutes or any other period which might appear reasonable, it is my view that the requirement to provide a urine sample is coterminous with the obligation to permit the extraction of a blood specimen as a matter of law. No doubt as a matter of practice and common courtesy the doctor and gardai involved would afford the person concerned a reasonable interval to provide the agreed sample. However, in the nature of the statutory rights and obligations I am satisfied that the learned Judge of the District Court was wrong in concluding the Respondent was entitled to an interval which he assessed in the circumstances of the present case at thirty minutes or indeed to any such interval. Accordingly, I would allow the appeal and answer the question raised in the case stated in the negative.

-6-