The Court of Appeal has dismissed Frank Brassil’s appeal against a High Court decision refusing judicial review of his road traffic convictions. The court found that the wait for a doctor to take a blood or urine sample was not excessive in the circumstances, and that the procedural shortcomings in his judicial review application gave no basis to overturn the High Court’s decision.
Brassil had been convicted of failing to provide a sample and dangerous driving. He was arrested at 4.05am on 2 September 2013 on suspicion of driving under the influence of alcohol. At the station, gardaí began the required observation period before a breath test but could not access the Evidenzer because they had no key. A doctor was contacted at 5.35am and said he would arrive five minutes later, but reached the station at 6.30am. Brassil refused to provide blood or urine samples.
The dangerous driving conviction arose from a Garda’s account that Brassil drove around a roundabout five times to evade gardaí and then drove at 220km/h. The High Court had found that this eyewitness evidence was independent of the later detention and sample procedure. The Court of Appeal agreed there was no link between the alleged delay and the dangerous driving conviction, which had not been challenged on that basis in the Circuit Court. It also noted that the same penalty had been imposed for both offences.
The appeal focused on the interpretation of DPP v Finn and whether the prosecution had to explain the doctor’s delay. Brassil argued that a challenge to delay required the prosecution to provide evidence justifying it. The Director of Public Prosecutions argued that evidence to justify a delay was required only if the trial judge first found it unreasonable.
The Court of Appeal held that not every delay requires objective justification. The question was whether the delay was excessive in the circumstances. It found that the initial 39-minute delay was explicable by the inability to access the testing machine, and that the subsequent 55-minute wait for the doctor depended on a third party and was outside gardaí’s control. The court described the doctor’s arrival within an hour as a “good service; if not a very good one”. It concluded that the delay was not excessive and rejected this ground of appeal.
The court also found no basis to interfere with the High Court’s refusal of relief. The judicial review application had been brought outside the prescribed three-month period without an explanation on affidavit, and the order Brassil sought to challenge had not been lodged before the High Court hearing. The Court of Appeal dismissed the appeal. It stated its provisional view that the DPP was entitled to costs, while allowing Brassil 14 days to seek an alternative order through written submissions.