The High Court ruled that a Garda who detains a driver at an accident scene may require another Garda to administer a roadside breath test once the testing equipment arrives. It answered “yes” to a question referred by Letterkenny District Court about whether the procedure used in Gerard Davenport’s case complied with section 12 of the Road Traffic Act 1991, as amended.
The ruling was given by Mr Justice Hedigan on 19 November 2009 in a consultative case stated. The High Court was asked to interpret the law; the judgment did not determine the two complaints against Davenport or record their final disposition.
The complaints arose from an incident at Drumahoagh, Letterkenny, on 7 May 2006. Davenport faced a charge of driving without reasonable consideration and a charge alleging that, after driving, his breath alcohol concentration exceeded the statutory limit. At the District Court hearing on 19 January 2009, the defence indicated that the facts of the first charge were not in issue and that a guilty plea would be tendered on that matter. The judgment does not state the outcome of that charge.
According to the case stated, Sergeant Michael Murphy formed the opinion that Davenport had consumed an intoxicant and, because he was involved in a road traffic accident, sought a roadside breath test. Garda John Healy went to Letterkenny Garda Station to obtain an alcometer. Murphy detained Davenport at the scene while Healy fetched it. Healy returned and administered the test, which was positive. Murphy then arrested Davenport under section 49(8) of the Road Traffic Act 1961. The case stated said the arrest depended entirely on the positive result; the prosecution had presented no other evidence of alcohol or incapacity to drive.
The defence argued that the same Garda had to detain the person and carry out the test under section 12. The prosecution submitted that the law allowed another Garda to administer it. The District Court judge initially considered the section appeared to refer to the same member, but referred the interpretation question to the High Court.
Justice Hedigan said it would be an “absurd and artificial” reading of the provision to prevent the Garda in charge of an accident scene from detaining a person and having another member conduct the test. He found that the statutory purpose was met where the person knew they were detained pending the test and was told to provide a sample when the apparatus became available. He also said that, even if there had been a flaw, it was minor and could not cause prejudice or injustice in the circumstances.
The High Court’s answer was yes: the procedure adopted by Murphy and Healy accorded with section 12. The ruling addressed that procedural question only.