The Supreme Court has ruled that a driver required to provide an oral-fluid specimen at a mandatory checkpoint had to wait for the testing apparatus to produce a result. But the Court said a garda was wrong to tell the driver he was required to wait for up to an hour, and left it to the District Court to decide whether that error affected the case.
The judgment, delivered by Ms Justice Iseult O’Malley on 25 November 2024, arose from a case stated by District Judge Gráinne Malone. The Director of Public Prosecutions appealed a 2023 High Court ruling that the Road Traffic Act 2010 did not authorise Gardaí to require a driver to remain at a checkpoint while a roadside drug test was analysed.
The Supreme Court considered the law as it stood when the events occurred. It rejected the argument that the legislation implied a general power to detain a driver for a reasonable period, or for up to one or three hours. Instead, it held that the statutory requirement to provide an oral-fluid specimen “using” apparatus for indicating drugs covered using the testing equipment through to the display of its result. The Court said this interpretation did not require an additional implied detention power.
The case arose after Garda Colin McCluskey stopped the respondent at a checkpoint at Constitution Hill, Dublin 7, on 8 September 2019. The garda said he smelled cannabis in the vehicle, required an oral-fluid specimen and told the driver to remain for up to an hour. The specimen tested positive for cannabis at 10.34am, about 18 minutes after the stop. The driver was arrested and later provided a blood specimen at Store Street Garda Station.
A certificate of analysis recorded cannabis and cocaine in the blood above the statutory limits. The respondent stands charged with driving with prohibited concentrations of those drugs. The Supreme Court did not decide the charge or whether the roadside error affected the later arrest or blood evidence.
The Court said the one-hour period the garda stated had no statutory basis. It remitted the matter to the District Court to determine whether that error had any material effect, given that the driver was required to wait for the test result and the actual test took considerably less than an hour. The judgment also noted that a 2024 amendment, in force from 31 May 2024, expressly provides for a wait of up to 30 minutes; the Court’s interpretation concerned the earlier law.