Judgment: 2019-11-18 · Court archive

Court of Appeal rejects DPP appeal over roadside breath test arrest

The court ruled that a positive roadside breath test alone could support a Garda’s opinion that a driver had committed an offence, but dismissed the Director of Public Prosecutions’ appeal.

Court of Appeal · [2019] IECA 293

Who, what, where, when and why

Who
  • Director of Public Prosecutions (Respondent)
  • Keenan McGovern (Appellant)
  • Patrick McCarthy (Judge)
What

The court ruled that a positive roadside breath test alone could support a Garda’s opinion that a driver had committed an offence, but dismissed the Director of Public Prosecutions’ appeal.

Where

Places mentioned in the report

  • checkpoint
When

Judgment:

Other dates in the report
  • 3 September 2016

    The judgment, delivered by Mr Justice Patrick McCarthy on 18 November 2019, concerned Keenan McGovern, who was stopped at a checkpoint on 3 September 2016. The roadside alcometer returned a “Fail” but did not show the alcohol concentration or whether he exceeded a permitted limit. The judgment records that he drove to the checkpoint without difficulty and showed no signs of intoxication.

Why

Reasons reported in the judgment

The District Court judge had relied on a submission that the Supreme Court’s decision in DPP v Gilmore meant a roadside “Fail” alone could not support the Garda’s opinion. On a case stated, the High Court ruled against that interpretation. McGovern appealed, arguing that the matter involved a factual finding rather than a question of law.

The Court of Appeal dismissed the Director of Public Prosecutions’ appeal in a case about whether a Garda could form the opinion needed to arrest a driver based solely on a positive roadside breath test.

The judgment, delivered by Mr Justice Patrick McCarthy on 18 November 2019, concerned Keenan McGovern, who was stopped at a checkpoint on 3 September 2016. The roadside alcometer returned a “Fail” but did not show the alcohol concentration or whether he exceeded a permitted limit. The judgment records that he drove to the checkpoint without difficulty and showed no signs of intoxication.

A later station breath test measured alcohol in his breath at 54 micrograms per 100 millilitres. The judgment says that result was sufficient to ground a conviction, but the evidence was excluded after the District Court deemed the arrest unlawful. The District Court then dismissed the prosecution.

The District Court judge had relied on a submission that the Supreme Court’s decision in DPP v Gilmore meant a roadside “Fail” alone could not support the Garda’s opinion. On a case stated, the High Court ruled against that interpretation. McGovern appealed, arguing that the matter involved a factual finding rather than a question of law.

The Court of Appeal said the District Court’s decision turned on an error of law about whether a positive roadside breath test could, by itself, support the Garda’s opinion. It cited the Supreme Court’s reasoning in Gilmore, which concerned analogous legislation and held that a positive breathalyser result could be sufficient to justify such an opinion.

Mr Justice McCarthy answered the legal question in the negative: a Garda’s opinion based solely on the roadside test result could be sufficient to found a reasonable opinion that a person was incapable of having proper control of a vehicle. The Court of Appeal accordingly dismissed McGovern’s appeal. The judgment did not itself determine the prosecution’s outcome after that ruling.

Read the original court judgment

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