The Supreme Court ruled that a person may be lawfully arrested for drink driving without a Garda expressly naming the statutory provision, provided the reason for the arrest is communicated in ordinary language. It sent the case back to the trial judge to consider whether the prosecution had proved the requirements for using an evidential breath statement.
The judgment, delivered by Mr Justice Hardiman on 6 December 2011, arose from a case stated by a Circuit Court judge hearing an appeal from a District Court conviction. Frank Ennis had been convicted on 14 February 2006 of an offence under the Road Traffic Act. The source says the date in 2007 when the case was stated is not readily legible.
The Circuit Court judge found that Garda Elaine Rowan intended to arrest Ennis under section 49(8) of the Road Traffic Act, but did not invoke that provision at the time. The Supreme Court held that telling someone they were being arrested for “drink driving” could communicate the reason sufficiently and answered the first legal question “Yes”.
The Court distinguished that ruling from a separate requirement relevant to the prosecution: the breath-sample demand depended on the person having been arrested under one of the specified statutory sections. Whether the prosecution established that requirement remained for the trial judge to consider if necessary.
At the Garda station, another Garda, identified in the judgment as Dooley, demanded two breath specimens and later produced a section 17 statement. The defence objected to the statement on the basis of compliance with the 1999 regulations. The Circuit Court record said the original was tendered but not formally admitted. The judgment described statutory requirements for information to be entered into the breath-testing apparatus before the specimens were provided, and for the resulting statements to be signed.
The Supreme Court said the accused could rely on any relevant part of the prosecution evidence, including answers elicited in cross-examination, to discharge an evidential burden concerning compliance. It answered the second question in the affirmative, but left it to the trial judge to determine whether the evidence in this case did so.
The Court also ruled that if the statutory presumption under section 21 was rebutted, the section 17 statement would have no evidential effect for any fact or matter covered by the rebuttal. It remitted the case to the trial judge for consideration in accordance with its findings. The judgment did not itself determine whether the statement was admissible, whether the prosecution had proved the offence, or the final outcome of the remitted proceedings.