The Supreme Court ruled that a breath-test certificate could not ground a prosecution against Frank McDonagh because it recorded results from specimens that were not the two relevant under the Road Traffic Act 1994.
The judgment, delivered by Mr Justice Finnegan on 16 October 2008, answered “No” to both questions referred by a Circuit Court judge. The case concerned the interpretation of section 13(1)(a) and whether a section 17 certificate was admissible in evidence in the circumstances. The Supreme Court did not determine the underlying charge.
Mr McDonagh was charged over an alleged drink-driving incident on Colliemore Road, Dalkey, on 9 February 2002. The charge alleged that he drove in a public place while alcohol was present in his body and that a breath specimen provided within three hours exceeded the statutory concentration. Those were allegations, not findings made by the Supreme Court in this appeal.
At the Garda station, three attempts were made using an intoximeter. The judgment records that the first test produced no measurement. The second measured one specimen at 88 micrograms of alcohol per 100 millilitres of breath, but marked the other specimen incomplete. The third test measured two specimens at 88 and 87 micrograms and generated a certificate in the prescribed form. The prosecution relied on that third-test certificate.
The accused’s submissions were that the first measured specimen from the second attempt and the first measured specimen from the third attempt were the first two specimens capable of measurement. The prosecution submitted that the earlier attempts had not satisfied the requirement and that the successful third attempt supplied the relevant results.
The Supreme Court held that section 13(1)(a) required two specimens capable of measurement, but did not permit a requirement for more than two such specimens. It said the apparatus’s operating design could not determine how the statute was interpreted. On the facts stated to the Court, the relevant specimens were the first specimen measured on test six and the first specimen measured on test seven.
Because the machine could not produce a prescribed certificate for those two specimens, the certificate from test seven—which related to the second and third specimens measured—could not ground the prosecution. The Court therefore found that the certificate was not admissible for that purpose. Its answers resolved the legal questions referred; the judgment does not record a final decision on the charge itself.