The High Court has ruled that evidence before the District Court was not sufficient to rebut the statutory presumption that a blood sample in a drug-driving prosecution was analysed as soon as practicable.
Ms Justice O’Regan delivered the judgment on 17 February 2023 in a consultative case stated by District Court Judge Ann Watkin. The High Court answered “No” to the first question referred to it. It said the second question, concerning the admissibility of the Medical Bureau of Road Safety certificate, did not arise in light of that answer.
The prosecution concerned Philip Barry, who was stopped at an authorised intoxicant-testing checkpoint on Enniskerry Road, Stepaside, on 24 January 2019. Sergeant Brendan Reville’s evidence was that an oral-fluid test was positive for cannabis, after which Barry was arrested and a blood sample was taken. The Bureau received the sample on 25 January. It issued a certificate showing nil alcohol, received by gardaí on 28 January, and a second certificate showing a positive cannabis result, received on 22 March.
At the District Court hearing in November 2020, the defence argued that the delay and the alcohol test—which it said was unnecessary—raised a possibility that the drug analysis had not been carried out as soon as practicable. The District Court judge considered that this evidence shifted the onus back to the prosecution to explain the delay. The State argued that elapsed time alone was insufficient and that no prejudice had been shown.
The High Court said the evidential bar for rebutting the statutory presumption was low: evidence must be sufficient to create doubt about the presumption’s correctness. But the court held that the material before the District Court did not meet that bar. The dates of receipt and the two certificates did not, by themselves, cast doubt on the cannabis certificate’s contents or show unfairness, prejudice or detriment. The court also said the suggested possibility that the alcohol test delayed or contaminated the drug test was not supported by evidence.
The judgment did not decide the separate question of whether the certificate was inadmissible, because that question depended on a “Yes” answer to the first question. The High Court made no immediate costs order. It allowed submissions limited to 1,000 words within 14 days on the appropriate costs order.