Supreme Court of Ireland Decisions

Judgment Title: DPP -v- Malone

Neutral Citation: [2006] IESC 38

Supreme Court Record Number: 159/05

Circuit Court Record Number:

Date of Delivery: 28 June 2006

Court: Supreme Court

This is a case stated by His Honour Judge Raymond Groarke, assigned to the Eastern Circuit, pursuant to s.16 of the Courts of Justice Act, 1947, seeking the determination of certain questions of law which arose in the course of proceedings before him in the Circuit Court.

The respondent appeared before the Circuit Court judge at Trim Circuit Court on the 31st October, 2003, to prosecute an appeal from the District Court in respect of an offence alleged to have been committed by him on the 19th January, 2003, at Ashbourne Garda Station when, being a person arrested under s.49(8) of the Road Traffic Act, 1961, and having been required by Garda Niall O’Sullivan, a member of the Garda Síochána, at Dunshaughlin Garda Station, pursuant to s.13(1)(b) of the Road Traffic Act, 1994, to permit a designated doctor to take from him a specimen of his blood or at his option to provide a designated doctor with a specimen of his urine, did refuse to permit the doctor to take from him a specimen of his blood contrary to s.13(3) of the Road Traffic Act, 1994.

The facts as proved, admitted or agreed, or as found by the learned Circuit Court judge were as follows:-
(a) Garda Niall O’Sullivan stopped a motor vehicle being driven by the respondent on the 19th January, 2003, at 12:10am at Grange End, Dunshaughlin, Co. Meath, a public place. He noticed a strong smell of alcohol from the respondent’s breath and his speech was slurred. Garda O’Sullivan asked him to step out of the vehicle and observed that he was unsteady on his feet. Garda O’Sullivan formed the opinion that the respondent was under the influence of an intoxicant to such an extent that he was incapable of having proper control of a mechanically propelled vehicle and that he had committed an offence under s.49(1) and (2) or (3) of the Road Traffic Acts, 1961-1994. He informed the respondent of his opinion and explained to him what it meant. At 12:15am he arrested the respondent under s.49(8) of the Road Traffic Acts, 1961-1994.
(b) The respondent was conveyed to Ashbourne Garda Station, arriving at 12:30am. Dr. Gujral was contacted and arrived at the station at 12:51am. Garda O’Sullivan introduced the respondent to Dr. Gujral as a person arrested under s.49(8) of the Road Traffic Acts, 1961-1994. He introduced the doctor as a designated doctor.
(c) Garda O’Sullivan made a requirement of the respondent under s.13(1)(b) of the Road Traffic Acts, 1961-1994, to permit Dr. Gujral, the designated doctor, to take from him a specimen of his blood or as his option to provide for Dr. Gujral a specimen of his urine. Garda O’Sullivan outlined the consequences of failure or refusal to comply with the requirement.
(d) At 12:57am the respondent opted to provide a sample of urine. Garda O’Sullivan handed Dr. Gujral a sealed box marked “U” and a jug sealed in plastic. Dr. Gujral opened the apparatus required for taking the sample and all was present and correct. Dr. Gujral handed the respondent the jug and outlined what he required. Garda O’Sullivan took the respondent to the toilet at 12:58am. At 1:07am the respondent had failed to provide a sample and asked for another minute. At 1:12am the respondent was taken to the toilet again and by 1:15am no sample had been provided.
(e) Garda O’Sullivan informed the respondent that he had failed to provide a urine sample and at 1:16am Garda O’Sullivan made a requirement of him under s.13(1)(b) of the Road Traffic Acts, 1961-1994, to permit Dr. Gujral to take from him a specimen of his blood. Garda O’Sullivan outlined the consequences of his failure or refusal to comply with the requirement.
(f) The respondent stated that he would “give a urine sample later”. At 1:17am Garda O’Sullivan formed the view that the respondent had refused to comply with his requirement. At 1:25am the respondent was returned to the cell and Dr. Gujral left the station at 2:20am.
(g) The respondent was subsequently charged with the offence set out in paragraph 1.

At the conclusion of the prosecution case, counsel for the respondent submitted that the respondent had not in fact refused to provide a blood sample and that the prosecution had made an error in deeming this to be a refusal.

In reply, the prosecution submitted that there was no provision requiring or authorising any delay or postponement in the taking of a 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. It was further submitted that to escape the obligation of permitting a blood specimen to be taken, the accused must actually provide a specimen of urine, not simply agree to provide the specimen within a limited or reasonable time. 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 prosecution acknowledged that, as a matter of practice and common courtesy, the doctor and gardaí involved might afford a person concerned a reasonable interval to provide an agreed sample. However, the requirement to provide a urine sample was conterminous with the obligation to permit the extraction of a blood specimen as a matter of law. It was submitted that the time permitted to the respondent to provide a sample was reasonable.

The learned Circuit Court judge indicated that he did not believe that the respondent had been given a reasonable time to provide the urine sample, the judge having determined that the time allowed for this purpose was from 12:58am to 1:16am. However, he agreed to state for the opinion of this Court the following question of law:-

“(1) Was I entitled in law to hold that the respondent had not been given a reasonable time to provide a urine sample?

Relevant Statutory Provisions

Section 13(1) of the Road Traffic Act, 1994, provides that:-

“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 Síochána is of opinion that the person has consumed an intoxicant, a member of the Garda Síochána may, at a Garda Síochána station, at his discretion, do either or both of the following—( b ) require the person 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,
and if the doctor states in writing that he is unwilling, on medical grounds, to take from the person or be provided by him with the specimen to which the requirement in either of the foregoing subparagraphs related, the member may make a requirement of the person under this paragraph in relation to the specimen other than that to which the first requirement related.”

“…person who, following a requirement under subsection (1) (b) -

(a) refuses or fails to comply with the requirement, or
(b) refuses or fails to comply with a requirement of a designated doctor in relation to the taking under that subsection of a specimen of blood or the provision under that subsection of a specimen of urine,
shall be guilty of an offence and shall be liable on summary conviction to a fine…or to imprisonment for a term not exceeding 6 months or to both.”

Submissions of the Parties

Before this Court it was submitted by Patrick Horgan, senior counsel for the respondent, that the Act of 1994 does not set down any specific period of time within which the requirements imposed pursuant to s.13 of the Road Traffic Act, 1994, must be complied with by the person charged. This was in marked contrast to other sections of the Act, such as s.12 (which permits a member of the Garda Siochana to require a person to remain at a place for not more than one hour until an apparatus for a breath test becomes available) and s.16 (which provides for the detention for a period not exceeding six hours of an intoxicated driver who may be a danger to others). Mr. Horgan submitted that it was clear from cases such as Director of Public Prosecutions v. Finn [2003] 1 IR 372 that where the authorities are entitled to perform a particular procedure on arrest, they are entitled to a reasonable period of time in which to do it. It followed therefore that a person charged must also be permitted a correspondingly reasonable period of time to comply with a procedure such as that contained in s.13 of the Act.

Counsel submitted that the statutory scheme must be interpreted as meaning that the person charged must be afforded a reasonable time, both to exercise his statutory choice between giving a specimen of blood or a specimen of urine, and further, where he opts to provide urine, a reasonable period of time to comply with that procedure.

Mr. Horgan cited in support the following passage from the judgment of Keane C.J. in Director of Public Prosecutions v. Mangan [2001] 2 IR 373 (at pp.382-383):-

“There cannot be the slightest doubt as to what the intention of the Oireachtas was: it must have been envisaged that, in every case where a person chose to avail of the option to give urine, an interval of time, however short, would elapse before the specimen was provided. It must equally have been envisaged that, in some cases, a person might be simply unable to provide a specimen and again it cannot have been the intention of the Oireachtas that in those circumstances the accused would at that point in time have committed an offence in having refused to permit the doctor to take a specimen of his blood or to provide a specimen of his urine, nor indeed (not surprisingly) is any such submission advanced on behalf of the accused in the present case.


It follows inevitably that, provided the garda had given a reasonable time to the accused to provide the specimen, and it is not suggested that she had not, the duty on the accused to permit the doctor to take a blood specimen revived at the end of the period in question.”

In response, Sunniva McDonagh, counsel for the Director, submitted that it was well settled that the provision of a specimen of urine is an alternative requirement which may be substituted at the option of the person concerned. In Director of Public Prosecutions (Coughlan) v. Swan [1994] 1 I.L.R.M 314, Egan J. stated at pp.317-318 as follows:-

“The obligation under the section is to permit the taking of a specimen of blood but subject, at the option of the person, to provide a specimen of his urine. The word used is ‘option’. If the person declares that he wishes to avail of the option but then finds that he is unable to do so, the obligation to permit the taking of a specimen of blood revives and, in such circumstances, a refusal by him to permit the taking of blood is the offence with which he should be charged.”

“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.


It is not then a question of how long a doctor and the gardaí must wait. The legal consequence, as explained in DPP (Coughlan) 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 30 minutes or 15 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 gardaí 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 that the respondent was entitled to an interval which he assessed in the circumstances of the present case at 30 minutes or indeed to any such interval.”

Decision

The essential difficulty in this case arises from what appear to be somewhat inconsistent observations made in the two decisions of this Court in the cases cited above as to whether there is a ‘reasonable time test’ to be applied in respect of compliance with those provisions of section 13 of the Road Traffic Act, 1994, which relate to the exercise of the option to provide blood or urine and to the actual provision of urine where that option is exercised. This case stated relates exclusively to the question of the time or opportunity to provide urine in compliance with the statutory requirement, a decision having been made by Mr. Malone to provide urine.

In Director of Public Prosecutions v. O’Connor [2000] 1 ILRM 60, Murphy J., in delivering judgment on behalf of a five member Supreme Court, emphasised that the requirement to provide a urine sample under the section is, as a matter of law, coterminous with the obligation to permit the extraction of a blood specimen. He ruled out any entitlement to any specific period or periods of time which might appear reasonable for compliance with the requirement and expressed himself satisfied that the District Court judge was wrong in concluding that the respondent in that particular case was entitled to an interval which he, the District Judge, had assessed in the circumstances of the case at thirty minutes. As is apparent from the citation which appears at an earlier point in this judgment, Murphy J. took the view that there was no provision in the section requiring or authorising any delay or postponement in the taking of a specimen beyond what might reasonably be required to enable the person to exercise a statutory choice between giving a specimen of blood or a specimen of urine. The only qualification to this strict approach is to be found in that portion of his judgment where Murphy J. stated (at p.64):-

“No doubt as a matter of practice and common courtesy the doctor and gardaí involved would afford the person concerned a reasonable interval to provide the agreed sample.”

“There cannot be the slightest doubt as to what the intention of the Oireachtas was: it must have been envisaged that, in every case where a person chose to avail of the option to give urine, an interval of time, however short, would elapse before the specimen was provided. It must equally have been envisaged that, in some cases, a person might be simply unable to provide a specimen and again it cannot have been the intention of the Oireachtas that in those circumstances the accused would at that point in time have committed an offence in having refused to permit the doctor to take a specimen of his blood or to provide a specimen of his urine, nor indeed (not surprisingly) is any such submission advanced on behalf of the accused in the present case.


It follows inevitably that, provided the garda had given a reasonable time to the accused to provide the specimen, and it is not suggested that she had not, the duty on the accused to permit the doctor to take a blood specimen revived at the end of the period in question.”

It seems to me that the ‘opportunity for compliance’ may be understood as consisting only of the following elements: firstly, the person who has exercised the option to provide a urine sample must forthwith be provided with an appropriate container, he must then be requested to go to a specific place to provide the specimen and, thirdly, that person must actually provide the specimen at the expiration of such short time as is appropriate for the normal performance of that function.

Understood in this way, “reasonable opportunity” may be taken as meaning the sort of opportunity which a parent might give a child to avail of the bathroom facilities before a lengthy journey by car, bus or train, or such as might occur where a person attending a play in a theatre avails of the opportunity to visit the washroom during an intermission. It seems to me that any concept of “reasonableness” cannot be stretched further than to mean “reasonable opportunity” in the context of the overarching requirements in the Road Traffic Act that all of the procedural steps to deal with alleged offences of drink driving be completed within a relatively short time.

The purpose of affording that opportunity to the person concerned is not to ensure that persons will ultimately be able to provide a sample, but rather give them an opportunity, coterminous with the requirement to provide blood, to provide urine if they are in a position to do so. The fact that the person concerned has paid a visit to the bathroom and has not brought any extenuating circumstances to light which he alleges could be relevant to the attention of the gardaí is evidence in itself that he has been afforded an adequate opportunity to provide a urine sample.

Having reached that conclusion, I would answer the first question in the case stated in the negative. That being so, any requirement to answer the second question does not arise.