The Supreme Court has ruled that the charge brought against Bridget Moorehouse for failing to provide breath specimens in the manner directed by a Garda was not an offence under section 13(2) of the Road Traffic Act 1994. The Court answered the first question in a case stated from the Circuit Court “no”.
The case arose after Moorehouse was arrested in December 2001 and required to provide two breath specimens at Dún Laoghaire Garda Station. Evidence before the Circuit Court was that she exhaled into the intoximeter on three attempts, but did not provide complete specimens that enabled it to measure alcohol concentration. She was convicted in the District Court in July 2002 and appealed to the Circuit Court.
The charge alleged that she failed to comply with the requirement “in the manner indicated” by the Garda. Moorehouse’s counsel argued that section 13(2) criminalised refusal or failure to comply with the requirement to provide specimens, but did not separately make it an offence to fail to follow the Garda’s directions on how to do so. The Director of Public Prosecutions argued that those directions were part of the requirement itself.
Delivering judgment on 28 July 2005, Mr Justice Kearns noted that sections 12 and 14 of the 1994 Act expressly address failures to comply in specified ways, while section 13(2) does not. He said the words allowing a Garda to indicate the manner of compliance were enabling provisions, not part of the requirement that defined the offence. Treating them as part of it would require adding words to the statute, which would amount to judicial rewriting.
The Court concluded that the charge and conviction in this case were not provided for by section 13. It observed that a charge simply alleging failure to provide two specimens under section 13(1)(a) would identify an offence under the section, but that was not the charge before it.
On the second question, the Court said that merely exhaling into the apparatus is not sufficient compliance unless the specimen enables alcohol concentration to be determined. It left aside other possible defences, such as an alleged defect in the equipment, and did not decide whether any such defence applied here.