The High Court has ruled that a Garda was not required to observe a driver for 20 minutes before administering a roadside breath test. It held that the District Judge was wrong in law to dismiss a drink-driving prosecution because that observation period had not taken place.
The ruling came in a case stated brought at the request of the Director of Public Prosecutions after a District Court dismissal. The question put to the High Court was whether the prosecution could be dismissed on that basis, despite other factors grounding the arresting Garda’s opinion. Mr Justice Meenan answered: “no”.
The prosecution concerned Ion Feghiu, who was accused of driving at Forester Way, Swords, on 2 December 2017, with a blood alcohol concentration of 147 milligrammes per 100 millilitres. The judgment records that Garda Eimhin Matthews saw the vehicle weaving between parked cars, travelling at speed and stopping abruptly. He detected a strong smell of alcohol and administered a roadside breath test, which the machine indicated had been failed. Feghiu was arrested and later provided a blood sample for analysis.
In evidence, Garda Matthews said the manner of driving and smell of alcohol contributed to his decision to arrest Feghiu, and accepted that the roadside test also played a part. He had received training on the Dräger machine but did not recall seeing its instruction manual. He was unaware of any manufacturer’s instruction recommending a 20-minute observation period and did not conduct one. The judgment also records that Garda Jennifer Quinn noted bloodshot eyes and a smell of alcohol from Feghiu’s breath at the station; he said he had had two drinks.
The District Judge concluded that a 20-minute observation period should have been followed in line with the apparatus instructions and dismissed the case, declining to mark a conviction. The High Court agreed with an earlier ruling that operating instructions for the testing apparatus do not form part of the offence itself. It said the Garda was not obliged to carry out the observation period before using the apparatus.
The High Court’s decision addressed the legal question in the case stated. Mr Justice Meenan said he would hear counsel about consequential orders. The judgment does not record a conviction or final order disposing of the prosecution.