The High Court refused an application to quash a conviction for failing to provide two breath specimens, concluding that judicial review was inappropriate on the information put before it and that the conviction was correct in law.
The applicant had been convicted in the District Court and fined €200. The Circuit Court reaffirmed the conviction on 15 February 2005 after hearing expert evidence for both sides. He sought judicial review of that decision, arguing that he had tried three times to provide a sample but could not produce a reading. He contended that this did not amount to failure to provide a specimen and that the Garda should have offered blood or urine testing instead.
The respondents argued that the application did not set out the findings of fact or the reasons for the Circuit Court decision. They said the applicant could have sought a case stated for the opinion of the Supreme Court, and that the legislation did not require Gardaí to offer blood or urine as an alternative to a breath test.
Mr Justice Roderick Murphy said a case stated would have been a more appropriate route because it could have included the Circuit Court judge’s findings. The judicial review papers did not provide those findings, explain the reasons for the decision or detail the procedure followed. The order being challenged was not exhibited with the affidavit, and there was no specific complaint that the hearing had been unfair. The judge said the court was being asked to speculate about the factual basis and process behind the conviction.
The judge nevertheless considered the legal grounds. Applying the Supreme Court’s decision in DPP v Moorehouse, he said a breath specimen must allow the alcohol concentration to be measured; merely exhaling into the apparatus is not enough. He also relied on DPP v Doyle in concluding that fault was not required where the person failed to provide the specimens required by law. The applicant’s claim that he had followed the Garda’s instructions did not answer the charge, which concerned failure to provide the required specimens.
The court said the legislation did not give an arrested person a right to choose blood or urine testing instead of breath specimens, and Gardaí were not obliged to offer that option if a breath specimen could not be obtained. The applicant had not relied on the statutory defence concerning special and substantial reasons, and the court noted there was no evidence of medical incapacity or a defective apparatus.
The application for judicial review was refused. The court did not quash the conviction.