The Supreme Court has ruled that a motorist who genuinely cannot provide a breath sample because of a medical condition must be told that she needs to offer a blood or urine specimen if she is to preserve that defence.
Maresa Cagney was prosecuted for failing to provide two breath samples after a lawful requirement was made under road traffic legislation. On appeal in Dublin Circuit Court, Judge O’Sullivan found that she had genuinely tried to comply but was physically unable to provide samples capable of being tested by an intoxilyser because of a temporary medical condition.
The Garda dealing with the test had asked whether Cagney had any medical condition preventing her from giving a specimen, and she replied that she had none. At trial, however, she gave evidence of a cough and chest infection. Her GP, who examined her the following evening, diagnosed a post-viral condition and considered that she would not have been able to provide the breath sample.
The Circuit Court found this amounted to a “special and substantial reason” for the failure. The difficulty was that Cagney had not been asked to give blood or urine and had not herself offered to do so.
Mr Justice Clarke held that a genuine, non-contrived physical inability to provide breath satisfies the first part of the statutory defence.
The court also held that, because failure to offer blood or urine would otherwise destroy that defence as a matter of law, Gardaí must warn a person of that consequence. The warning can be given before the breath test or after a failed attempt.
If no such warning is given, prosecutors cannot rely on the absence of an offer of blood or urine to defeat the defence. The person must still first prove a special and substantial reason for failing or refusing to provide breath.
The ruling therefore supported the Circuit Court’s conclusion that Cagney was entitled to an acquittal on the facts found.