Supreme Court of Ireland Decisions

 


THE SUPREME COURT

Record No. 133/03

Keane C.J.

Denham, J.

Murray, J.

McGuinness, J.

Hardiman, J.

DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR

and DAMIEN Mc NIECE

ACCUSED

Judgment of Murray, J. delivered on the 14th day of July, 2003 [Nem Diss].

This is a consultative Case Stated by Her Honour Judge Katherine Delahunt of the Circuit Court, Dublin pursuant to the provisions of Section 16 of the Courts of Justice Act 1947. This Case Stated arises from the prosecution of the accused for the offence of failing to provide two specimens of his breath, having been arrested on suspicion of driving with an excess quantity of alcohol, contrary to Section 13 (2) of the Road Traffic Act 1994.

The Questions

The learned Circuit Judge poses two questions of law which are as follows: -

"(a) Was the evidence before me sufficient to establish that it was lawful to detain the accused for observation for a period of approximately twenty minutes prior to requiring him to provide breath specimens pursuant to Section 13 (1)(a) of the Road Traffic Act, 1994?

(b) In the particular circumstances of this case where the accused had been in the company of Garda Byrne since the time of his coming to a halt to the time of his arrival at Blanchardstown garda station was it

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lawful for Garda Traynor to detain the Accused for a period of twenty minutes at Blanchardstown garda station in order to observe him prior to requiring him to provide the breath samples pursuant to Section 13 (1)(a) of the Road Traffic Act, 1994?"

The learned Circuit Court Judge did not set out any findings of fact in the Case Stated but it is indicated that apart from the issues raised by the two questions posed all other issues have been dealt with. The Case Stated sets out the evidence (including the relevance circumstances disclosed by that evidence) which was before the Circuit Judge. I understand the Case Stated as posing the two questions concerned on the basis of that evidence and those circumstances.

Evidence

The relevant evidence and circumstances set out in the Case Stated were that the accused was arrested by Garda David Byrne at 9.05pm on March 17^th, 2001. Immediately prior to that the accused had been driving a motor car which had been brought to a halt by a garda patrol car driver by Garda Byrne. On speaking to and observing the accused Garda Byrne formed the opinion that the accused was under the influence of intoxicating liquor to such an extent as to render him incapable of having proper control of the motor car and he accordingly arrested him pursuant to Section 49(8) of the Road Traffic Act 1961. Garda Byrne had first observed the accused at approximately 9.00pm and after the arrest brought him to Blanchardstown garda station where they arrived at 9.21pm. He had been continuously with the accused since the arrest. Between first seeing the accused driving at 9.00pm and arriving at the garda station the accused did not consume anything. On arrival at the garda

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station, Garda Byrne informed Garda Traynor, who was on duty in the public office, that he had arrested the accused on suspicion of driving under the influence of an excessive consumption of alcohol. Garda Byrne stated that prior to the occasion in question he had never seen an intoxilyser, (an apparatus designed for determining the concentration of alcohol in the breath), in operation. He gave evidence of the demands made on the accused by Garda Traynor to provide specimens of his breath by means by the said intoxilyser. In re-examination he stated that when driving back to the garda station with the accused in the patrol car he had been concentrating on the road.

Garda Patrick Traynor gave evidence that he was qualified in the operation of the particular intoxilyser in question. For this purpose he had undergone a three day training course under the auspices of the Medical Bureau of Road Safety and the Garda College. He was on duty when Garda David Byrne arrived at the station with the accused in custody. He explained to the accused that he would be operating the intoxilyser machine. He did not require the accused to blow into the intoxilyser machine immediately but stayed with him in the public office until 9.37pm when he went to the intoxilyser room during which interval he had observed the accused. He stated that he had done this to ensure that nothing was taken by mouth by the accused for 20 minutes prior to a breath test as this would interfere with the test. At 9.37pm he went to the intoxilyser room with the accused and Garda Byrne and at 9.40pm he required the accused to provide two specimens of his breath by exhaling into the intoxilyser pursuant to Section 13(1)(a) of the Road Traffic Act, 1994. He then gave evidence of the procedures which he followed for the purpose of enabling the accused to provide two specimens of his breath including the warnings which he gave him of the consequences of a failure to comply with the request to provide such specimens.

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He then went on to give evidence to the effect that no or no effective breath sample was provided by the accused because the accused was not exhaling into the machine. On cross-examination he confirmed that he had undergone a three day course in respect of this particular intoxilyser and handed in the training manual which he had used on the course. He confirmed that on the course he had been instructed to observe a suspect 20 minutes prior to carrying out the test. If he had observed such a person take anything orally which might interfere with the sample he would have recommenced the twenty minute observation period.

According to the Case Stated the next witness to give evidence was Ms Pauline Levy, Chief Analyst with the Medical Bureau of Road Safety and I think it would be more convenient to quote from the Case Stated material parts of the evidence which she gave in the Circuit Court "She stated that she had a BSC in Biochemistry and an MSC in Instrument Analysis. She gave evidence that the Medical Bureau of Road Safety is the statutory body responsible under the Road Traffic Act for the approval, supply and testing of evidential breath testing instruments in the jurisdiction. She gave evidence that the instruments remained the property of the Bureau. She stated that the relevant legislation did not set out any standard in relation to the approving of the instruments and that a number of standards are considered by the Bureau in approving the instruments. The UK Home Office standards were considered as were the standards set by the OIML (the International Organisation of Legal Metrology).

The lion intoxilyser 6000 IRL machine was one of two types of machine approved for the jurisdiction. In determining whether to approve the machine consideration was given to recommendations published in 1998. The Bureau considered best international practice. Machines were commissioned directly in

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stations by the manufactures but were not cleared for use until such time as the Bureau had tested them. She stated that she was aware of the course taken by Garda Traynor and that the course had been devised following consultation with programme managers in the United States and the United Kingdom. She agreed that the training manual which had been handed into Court was part of the documentation from the course. In relation to the twenty minute observation period she stated that this conformed with international best scientific practice which was that a fifteen to twenty minute observation period was necessary to eliminate the possibility of mouth alcohol. She stated that the period in question should be described more accurately as a deprivation/ observation period. She indicated that if someone was to take something orally or regurgitate or vomit that this would give rise to the possibility to mouth alcohol. She referred to the international literature in relation to evidential breath test instruments. She referred to the work of A. W. Jones who had been involved with breath testing apparatus in excess of forty years and his paper entitled "Physiological aspects of breath alcohol measurement" published in Alcohol Drugs and Driving Volume 6 No. 2 1990 wherein it was stated that when breath tests results are intended for a quantitative evidential purposes the measurements must not be made less than fifteen to twenty minutes after the subject has finished drinking. This time delay is necessary to allow for the dispersion of high concentrations of alcohol mixed with saliva and mucus secretions in the mouth. A copy of the paper in question was handed into Court." The witness also referred to a number of other scientific publications concerning the same subject matter which stated, inter alia, that failure to observe adequately a pre-test deprivation/observation period as one of the most common problems and lapses in forensic breath alcohol analysis. She also gave evidence that the fundamental purpose of requiring a twenty minute observation

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period before the test was to eliminate the 'mouth alcohol' effect "... someone could claim to have had alcohol in their mouth at the time of the test and therefore the twenty minute observation/deprivation period prevented this."

She also stated that if the machine detected mouth alcohol it would produce a result recording an unsatisfactory sample due to the presence of mouth alcohol. She was asked if this was the case then why was it necessary to await for twenty minutes. She stated that this was best recommended forensic practice internationally. In cross-examination she gave evidence that the twenty minute period of deprivation/observation had been set by the medical bureau of road safety in conjunction with the manufacturers. Other material evidence recited in the Case Stated is as follows: "She accepted that while a twenty minute observation period was recommended there was no recommendation in relation to where this observation should take place. She indicated that as far as she was aware it did not matter whether the observation period took place indoors or outdoors. She confirmed that there was a mouth alcohol detector in the machine. She was asked if the machine was capable of detecting mouth alcohol was it not the case that observation merely relieved the operator of the likelihood of having to conduct the test twice. She replied that the twenty minute observation and deprivation period was international best practice in forensic testing. She agreed that [if] the machine detected mouth alcohol it would not give a satisfactory reading and would indicate unusable sample. In relation to the bar or grid on the machine she stated the whole idea of the machine was to get deep long air which would accurately reflect the alcohol level and that once somebody is exhaling the machine is continually measuring and analysing looking for a plateau at a constant flow in line to enable it to be analysed. She agreed that the machine has to have a certain amount of air to get a reading and that

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the grid is a bar going across a screen helping to indicate when sufficient breath has been received. "

The accused also gave evidence which contradicted in a number of respects the evidence given by the garda witnesses and in particular he denied that he had failed to blow into the intoxilyser but had done so four times. It is a matter for the Circuit Court Judge to decide any issues of fact arising from any conflict of testimony between that of the accused the Prosecution witnesses. Suffice it to say that the evidence of the accused does not have a bearing on the particular questions of law as posed by the Circuit Judge in the Case Stated.

Statutory Provisions

Section 49 of the Road Traffic Act 1961 (the principal Act) (as inserted by section of the Road Traffic Act 1994) provides, inter alia, as follows:

"49.-(1) ( a) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle

(8) A member of the Garda Siochana may arrest without warrant a person who in the member's opinion is committing or has committed an offence under this section."

The relevant provisions concerning the taking of samples of breath, as provided for in section 13 of the Road Traffic Act 1994 are:

"13.-(1) Where a person is arrested under section 49 (8) or 50 (10) of the Principal Act or section 12 (3), or where a person is arrested under section 53 (6), 106 (3A) or 112 (6) of the Principal Act and a member of the Garda Siochana is of opinion that the person has consumed an intoxicant, a member of the Garda Siochana may, at a Garda Siochana station, at his discretion, do either or both of the following

( a ) require the person to provide, by exhaling into an apparatus for determining the concentration of alcohol in the breath, 2 specimens of his breath and may indicate the manner in which he is to comply with the requirement,

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(2) Subject to section 23, a person who refuses or fails to comply forthwith with a requirement under subsection (1)( a) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 6 months or to both.

(4) In a prosecution for an offence under this Part or under Section 49 or 50 of the Principal Act it shall be presumed, until the contrary is shown, that an apparatus provided by a member of the Garda Siochana for the purpose of enabling a person to provide 2 specimens of breath pursuant to this section is an apparatus for determining the concentration of alcohol in the breath."

Decision

The questions posed in the Case Stated fall to be addressed in the context of the decision of this court in D.P.P. -v- Finn (unreported, 19th February, 2003). In that case the accused had also faced a similar charge of failing to comply with a request to provide two specimens of his breath and, prior to the request being made, had been observed for a period of twenty minutes while in custody. The court held that on the evidence before the court of trial the prosecution had failed to establish that the prolongation of the accused's custody for the purposes of such a period of observation was lawful because the necessity for such a detention period had not been objectively justified.

Both my judgment and that of Hardiman J. in the Finn case pointed out that in criminal proceedings the onus is on the prosecution to establish beyond reasonable doubt that an accused, while held in custody, has at all times been so held in accordance with law. The evidence in that case was that arrested persons who were requested to provide breath samples pursuant to Section 13 (1)(a) of the 1994 Act were, as a matter of practice according to garda guidelines, kept under observation while in custody for a minimum period of twenty minutes for the purpose of ensuring that nothing was consumed orally by him or her prior to providing the samples. In my

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judgment in that case I concluded that this practice was "...a prescribed and conscious prolongation of an arrested person's period of detention in all such cases." I then went on to conclude that "In my view the onus is on the prosecution to justify in law recourse to a procedure involving such a prescribed minimum period of detention and observation for a forensic purpose. It must, in my view be justified by objective reasons…

However, that was not the case. All that was established before the learned Circuit Court Judge was that Garda Siochana guidelines which apply to a person arrested in the circumstances of the accused required his observation for the purposes and period outlined above. There was no evidence before the Circuit Court which would permit the Circuit Court Judge to conclude that the procedure involved was reasonably necessary for the purpose of achieving the objective of the arrest, namely, the taking of samples of breath."

It was the absence of any evidence capable of proving an objective justification for the observation period of twenty minutes which led to my conclusion, on the facts of that case, that the prosecution had not discharged the onus on it of justifying the detention in law and that therefore it must be considered to have been unlawful.

In the same case Hardiman J. in his judgment, commenting on the decision of the garda member to apply a twenty minute detention period, observed, "He did this because he had been told or advised to do so by "guidelines" Whether these are internal guidelines or guidelines for the manufacturers of the breathalysing device or guidelines from some medical or scientific advisor or from the D.P.P. does not

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appear. ... There was, accordingly, insufficient evidence in this case to permit the learned Circuit Judge to draw a conclusion as to whether the twenty minute interval specifically fixed by some unknown authority was or was not reasonably necessary to the achievement of the statutory purpose mentioned in S. 13(1)(a) of the Road Traffic Act, 1994. This conclusion does not mean that in another case where the same offence is alleged, there might not be sufficient evidence on this point."

It is clear from my judgment and that of Hardiman J. in the Finn case, that what was absent in that case was any evidence which could be considered capable of objectively justifying a practice of observing the arrested person for a period of twenty minutes before requiring him or her to provide the specimens of breath and thus prolonging the period of detention. As both judgments pointed out the Finn case was decided on its own particular facts.

The First Question

In this case Counsel for the D.P.P. correctly pointed out in the course of his submissions that the facts here are substantially and qualitatively different. Firstly, there was the evidence of Garda Patrick Traynor. According to his evidence he is a qualified operator of the intoxilyser in question. He had undergone a three day official training course under the under the auspices of the Garda College and the Medical Bureau of Road Safety in the use and operation of the intoxilyser. As a trained operator, he gave evidence that a period of twenty minutes observation of a person before he or she is required to use the intoxilyser was necessary to ensure that there was nothing taken orally by the person concerned, otherwise the taking of a valid breath test could be put in jeopardy. If anything was taken orally, then, as the operator, he would have had to recommence the twenty minute observation period.

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In the Finn case I also observed in my judgment that "If it had been objectively established, to the satisfaction of the learned Circuit Court Judge, that, for example, the procedure of observation for a stipulated period was reasonably necessary for the purpose of taking proper or reliable samples of breath (the purpose of the detention) then in my view that procedure would not have rendered the accused's detention unlawful ".

It seems quite clear to me that the evidence given by Garda Traynor, who had been trained in the use of the intoxilyser, if accepted by the learned Circuit Judge, demonstrates objectively that the observation period of twenty minutes prior to the accused exhaling into the intoxilyser was reasonably necessary in order to take effective or reliable samples of his breath. This was a purpose for which he was lawfully arrested and brought to the garda station.

The evidence of Ms Pauline Levy goes further in terms of the depth and analysis of the appropriate procedures which should be followed in the use of the intoxilyser and in particular the reasons why a twenty minute period of observation should be observed prior to the taking of breath samples. This may have been a case of 'painting the lily' on the part of the prosecution but her evidence is nonetheless further evidence which corroborates that of Sergeant Traynor and goes on to more comprehensively explain why the observation period of twenty minutes is necessary and that it accords with international best practice in the use of such intoxilysers.

In submissions to this court it was not contended on behalf of Counsel for the accused, and understandably so, that a twenty minute observation period was not necessary or justifiable under any circumstances. It was at one point suggested that the requirement to provide samples of breath could be made immediately on the arrival of an arrested person and if a valid result was not obtained the test could be

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carried out a second time. This submission was based on the evidence of Ms Levy that if a person had alcohol in the mouth at the time of providing the breath specimen the intoxilyser would register the test as invalid and not simply give an unreliable reading. Being thus informed the operator would then have an option of carrying out a second test, after a twenty minute observation period, in those particular cases where that problem arose.

In my view, the adoption by the State of a practice designed to ensure an effective and valid breath test when the requirement is first made rather than adopting a trial and error approach does not render unlawful the custody of the person concerned during that initial twenty minute period of observation. It is not in question that the garda member was entitled to require the arrested person to provide breath samples. I cannot see that there is anything unlawful or oppressive in adopting procedures to ensure that when that test is taken, or, if one wishes, taken for the first time, it is effective and reliable. Indeed the State could be more readily criticised in my view if it did not follow accepted procedures necessary to ensure an effective and valid result in each case when the intoxilyser is used. In this regard it was also submitted on behalf of the D.P.P. that there were at least doubts as to whether, under the relevant legislation, a second requirement could be made of an arrested person to provide a breath test if he or she had properly done so in response to the first requirement. That particular question of interpretation does not arise in this Case Stated but it is a matter in my view of legitimate concern for the State and is also a rational basis for following procedures which would ensure that the intoxilyser would give a valid and effective result when initially used.

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Second question

With regard to the second question the evidence before the learned Circuit Court judge was that the accused was in the company of and under the observation of Garda Byrne from the time when the garda first encountered him at 9.00pm until his arrival at the garda station at 9.21pm. Garda Byrne, I would recall, drove the accused to the garda station in the garda patrol car. In his evidence he stated that during the period between first observing the accused drive and arriving at the garda station the accused did not consume anything. On re-examination he stated that when driving back to the station he was concentrating on the road.

Counsel on behalf of the accused have submitted that since the accused was under garda observation for a period of at least twenty minutes before arriving at the garda station and being introduced to Garda Traynor, during which he had not taken anything orally, it was unlawful for the accused to have his period of detention prolonged by a further twenty minutes of observation. It was submitted that Garda Traynor could have made the appropriate inquiries of Garda Byrne for the purpose of ascertaining whether the latter could confirm that the accused had not taken anything and thus obviate the necessity of a further twenty minute period of observation.

In my view, this argument is not well founded. What is involved here is the lawful administration of a precise test by the use of an intoxilyser to determine the level of alcohol in an arrested person's breath. The test has potentially important consequences for the arrested person and for the public interest which is concerned with the obtaining of reliable evidence of the commission of an offence in appropriate cases. Once the necessity of an observation period of twenty minutes is objectively justified then the State must have a reasonable discretion as to the manner and circumstances in which that can be effectively carried out. It seems to me entirely

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rational and logical that the State would have administrative arrangements which placed on a designated person, in this case the trained operator of the machine, the responsibility for ensuring that the appropriate conditions existed and that the proper procedures were followed for the effective administration of such a precision test at the time when it was being given. The risks and potential frailties of the State relying on such precise observations of gardai in the fluidity of an arrest situation or while driving a patrol car as the basis on which to carry out a valid test and to establish it as correct seem to me so self-evident as to require little comment particularly when such necessary observation for the purposes of such a test can be better and more reliably carried out in a controlled situation under the eyes of a garda member designated for that purpose. Unless there is that kind of controlled observation there would always be the risk that an accused could claim to have surreptitiously taken something while the garda member was momentarily distracted.

In these circumstances I do not see any basis for considering that the decision of Garda Traynor to observe the accused for a twenty minute period prior to administrating the breath test could in any way have rendered unlawful the custody of the accused during that time even if Garda Byrne was in a position to give satisfactory evidence that the accused had not taken anything orally from the time he first observed him to the time when he arrived at the garda station.

It is a matter for the learned Circuit Judge to decide finally on the facts which she considers to have been established beyond reasonable doubt on the basis of the evidence recited in the Case Stated, I would, for the reasons outlined above, answer the two questions posed in the following manner: -

(a) Yes

(b) Yes