The High Court has upheld the lawfulness of a drink-driving arrest after a Garda asked the driver to move his car a short distance from a checkpoint, despite having formed the opinion that the driver was incapable of driving.
In a consultative case stated from the Dublin Metropolitan District Court, Ms Justice Dunne answered yes when asked whether the arrest was lawful in those circumstances. She answered no to the alternative question of whether the request to continue driving vitiated the Garda’s opinion. The court had some misgivings about whether that second question was appropriate for a case stated, which is confined to questions of law.
The matter arose from a complaint that Donal Milmo Penny drove on Templeogue Road, Dublin 6W, on 2 November 2003, with an alcohol concentration in his breath above the statutory limit. Those were the charge and circumstances set out in the judgment; the High Court was not determining the complaint itself.
At a checkpoint, Garda Garry Hallinan said he smelled alcohol on the driver’s breath and noticed slurred speech. The driver said he had been drinking after a rugby match. Hallinan formed the opinion that he was intoxicated to the extent that he could not operate a vehicle, then asked him to pull to the side of the road before arresting him. The driver complied voluntarily.
The defence argued that asking him to drive after forming that opinion was unlawful, deprived him of liberty and tainted the arrest and later evidence. The prosecution said the request was made for public safety at a checkpoint in the middle of a busy road and argued that no evidence had been obtained as a result of the request.
Justice Dunne said it would have been more appropriate to ask motorists to pull over before dealing with them, or to arrange removal of the vehicle after arrest. She also said that a Garda’s request does not itself authorise a person to commit an illegal act, and a person may refuse such a request. But she did not decide that moving the car in this case was necessarily illegal.
The judge found the arrest did not depend on the request to move the car: the Garda had already formed the opinion needed to engage the arrest power. No prejudice or evidence obtained because of the request was identified, so there was no causal link between the complained-of act and the evidence. She also rejected the claim that the request deprived the driver of liberty, given his voluntary compliance.
The court therefore left the arrest standing for the purposes of the legal questions referred. The underlying drink-driving complaint’s eventual outcome is not stated in this judgment.