The High Court has ruled that the Road Traffic Act 2010 does not give Gardaí an implied power to require a driver to remain at a roadside checkpoint while an oral fluid specimen is analysed for drugs.
The ruling came in a consultative case stated from the District Court, which asked whether section 10(4) allowed a Garda member on checkpoint duty to require a person to stay for up to one hour after providing a specimen. Mr Justice Garrett Simons answered “No” in a judgment delivered on 15 November 2023.
The driver, Jonathan O’Flaherty, had been told to remain at the roadside while his specimen was analysed. The Garda member accepted in cross-examination that he had told the driver he was not free to leave and would have prevented him from leaving while the analysis was pending. The result was available after 18 minutes. The Garda then formed the opinion that the driver was under the influence of an intoxicant and arrested him under section 4(8). At the station, the driver was required to provide a blood specimen.
The Director of Public Prosecutions argued that a power to detain should be implied so the roadside test could assist a Garda in forming an opinion about whether to arrest. The DPP said that without such a power the statutory scheme would be unworkable, and argued for a reasonable detention period subject to a three-hour limit.
The judge held that section 10 contains no express power to detain a driver after a specimen is provided, and that such a power was not necessary to avoid an absurd interpretation of the Act. He said the legislation does not refer to a time-consuming analysis, and that the way a particular testing device operates cannot determine the meaning of the statute. The Act does expressly allow a person to be kept at a checkpoint for up to one hour where the required apparatus is not available.
The judgment concerned oral fluid specimens only. It did not decide whether the roadside detention affected the validity of the later arrest or the admissibility of the blood specimen certificate. Those issues had not been determined by the District Court, and the case stated did not provide sufficient factual findings for the High Court to decide them. The criminal trial was expected to return to the District Court.
The judge said his provisional view was that the defendant would be entitled to costs against the DPP if the statutory default applied, while noting that costs might be dealt with differently if, for example, the defendant was receiving legal aid. He proposed a 28-day stay on the order to allow for an appeal and said the stay would continue if an appeal or application for leave to appeal was filed within that period. He was to hear submissions on the precise form of order on 20 November 2023.