The Supreme Court ruled that a 20-minute observation period before a Garda breath test did not make an accused person’s detention unlawful in the circumstances of a case referred from the Circuit Court.
In a judgment delivered on 14 July 2003, Murray J. answered yes to both questions posed by Judge Katherine Delahunt in a consultative case stated. The questions concerned a prosecution of Damien McNiece for allegedly failing to provide two breath specimens after his arrest on suspicion of driving with excess alcohol.
The Circuit Court had not set out findings of fact in the case stated. The Supreme Court said it was for the Circuit Court judge to decide finally what facts had been proved beyond reasonable doubt. The Supreme Court addressed the legal questions on the evidence and circumstances recited in the case stated.
The evidence described McNiece’s arrest at 9.05pm on 17 March 2001 and his arrival at Blanchardstown garda station at 9.21pm. Garda Patrick Traynor, a trained operator of the intoxilyser, observed him at the station until 9.37pm before taking him to the testing room. At 9.40pm, Traynor required him to provide two breath specimens. The prosecution evidence was that no effective sample was provided because McNiece was not exhaling into the machine. McNiece testified that he had blown into it four times.
The Supreme Court distinguished the case from an earlier decision, D.P.P. v Finn, where the prosecution had not presented evidence objectively justifying a prescribed 20-minute observation period. Here, the court said Traynor’s evidence, if accepted by the Circuit Court judge, showed that the period was reasonably necessary to obtain effective or reliable breath samples. Evidence from Pauline Levy, chief analyst at the Medical Bureau of Road Safety, described the period as accepted forensic practice to reduce the risk of mouth alcohol affecting a test.
The court also rejected the argument that the observation at the station was unlawful because another Garda had been with McNiece before arrival. Murray J. said the State could assign the trained operator responsibility for ensuring the test conditions were met in a controlled setting, given the need for reliable evidence.
The ruling addressed only the legality of the detention for the observation period on the questions referred. It did not decide the disputed evidence about whether McNiece failed to provide specimens or determine the prosecution’s ultimate outcome.