The Supreme Court has quashed seven convictions for alleged drink-driving offences after finding that a District Court judge failed to properly consider defence applications to inspect an evidential breath-testing machine.
In a judgment delivered on 1 March 2004, Mr Justice Geoghegan said the appeals arose from prosecutions relying on printouts from an Intoximeter EC/IR at Dún Laoghaire Garda Station. The defendants had sought access for an independent expert to examine the machine. The Supreme Court held that the judge refused to entertain those applications, making the procedure unfair.
The judgment’s formal title is the appeal by David Whelan against Judge Brian Kirby and the Director of Public Prosecutions. It also addressed appeals by Tara Henry, Dympna Stack, Jason Moffatt, Ciaran Fitzpatrick, Larry Clarke and Eoin Mulhall.
The court recounted that Whelan’s solicitor had sought the operator’s manual, information about calibration and repairs, and an expert inspection. The Medical Bureau of Road Safety indicated that the inspection request needed clarification and later, through its solicitors, said a court order appeared necessary. The proposed testing would require Bureau supervision and arrangements for costs. The judge was told of the correspondence, but declined to review it and said the application was refused. The cases proceeded to hearings; Whelan was convicted.
The Supreme Court said the statutory evidential presumption attached to an Intoximeter printout was rebuttable. It did not find that an inspection had to be allowed in every case, or decide what order should have followed had the District Court properly considered the requests. Instead, it held that a pre-hearing request of this kind had to be entertained and considered, subject to the judge’s discretion and any exceptional circumstances such as abuse of process.
The court allowed all seven appeals and substituted orders of certiorari for the High Court’s orders, quashing the convictions on grounds of procedural unfairness. In four cases—Whelan, Stack, Fitzpatrick and Mulhall—it also relied on an error on the face of the record: certified copies of the District Court orders differed over whether the defendants had been recorded as convicted. The judgment did not determine whether the machine was unreliable or whether any defendant would have established a defence through inspection.