The High Court ruled that a District Court judge was wrong to dismiss a drink-driving charge because the arresting Garda described the accused as incapable of “exercising” proper control of a vehicle rather than using the statutory wording “having” proper control.
The decision, delivered by Mr Justice de Valera on 13 November 2006, answered a question referred by the District Court in an appeal by way of case stated. The question was whether the judge had been correct to dismiss the charge on that wording difference.
The charge alleged that Brendan Cronin drove a mechanically propelled vehicle in a public place at Dirtane, Ballyheigue, Co Kerry, on 28 May 2005, while over the legal alcohol limit in urine. It cited section 49(3) and (6)(a) of the Road Traffic Act 1961, as amended. These were allegations in the charge; the judgment does not record a finding that Cronin committed the offence.
Cronin appeared before Judge James O’Connor at Tralee District Court on 5 April 2006, charged with two offences. The judgment describes only the charge that was the subject of the case stated appeal.
The High Court said there was no difference in meaning between “exercising” and “having” proper control in the context of the statutory provision, the circumstances of the alleged offence and the subsequent arrest. It said the wording could only mean that the driver was incapable, because of the intoxicant, of having proper control of the vehicle.
The judge concluded that a slight variation from the statutory wording did not materially alter the section’s meaning, prejudice the accused or provide sufficient grounds to dismiss the charge. The court answered that the District Court judge was not correct to dismiss it.
The judgment resolves that legal question. It does not state what happened to the charge after the case stated appeal, or give an outcome on the second offence.