The High Court has upheld the admissibility of breath-test statements in an appeal by way of case stated, ruling that Gardaí were not required by the applicable regulations to ask a driver whether he wanted them in Irish or English.
Mr Justice Binchy delivered the judgment on 22 January 2019. The appeal followed a District Court conviction under the Road Traffic Act 2010 for driving with alcohol above the prescribed limit. The District Judge had fined and disqualified Gerard Maher, then stated a case for the High Court on whether the regulations had been complied with and whether the breath-test certificate was admissible.
The prosecution evidence was that Maher was arrested in Mullingar at 1.10am on 25 October 2015 after being observed driving erratically. At the garda station, following an observation period of at least 20 minutes, he provided two breath specimens. The apparatus printed statements in English recording an alcohol concentration of 77 micrograms per 100 millilitres of breath. The Garda member testified that he had not offered Maher a choice of language. The District Judge found that Maher had not been given, or told he had, such an option.
Maher argued that the 2015 Regulations implicitly gave the person providing the specimens the right to choose the language, and required Gardaí to explain that choice. He submitted that the failure to do so meant the statements were not properly produced and should be excluded. The prosecution argued that the regulations did not assign the choice to the driver and that, in any event, the interaction had taken place in English and there was no prejudice.
Justice Binchy held that the regulations required the Garda member to enter a language into the apparatus before the breath sample was provided, but did not require the member to offer the driver a choice. He said the regulations were not unclear or ambiguous on that point. Adding an unexpressed duty would amount to judicial law-making, and any omission in the regulations was for the Oireachtas to address.
The judge also considered the alternative: even if there had been a duty to offer a choice, the failure caused no unfairness, prejudice or detriment on the facts before the court. He concluded that the appeal arguments failed on both grounds.
The High Court answered both questions in the case stated in the affirmative: the 2015 Regulations had been complied with, and the statements were admissible in evidence. The judgment did not set aside the District Court conviction, fine or driving disqualification; it resolved the legal questions referred on appeal.