The High Court has ruled that a Garda could reasonably form the opinion needed to arrest a driver after a failed preliminary breath test, even though the Garda understood the result to show only the presence of alcohol, not its concentration.
The ruling came in a consultative case stated from Dún Laoghaire District Court. District Judge Ann Watkin asked whether she was entitled to find that Garda Lee Kelly could not reasonably have formed the opinion required to justify an arrest under section 4(8) of the Road Traffic Act 2010.
The prosecution alleged that Mark Flanagan drove in Foxrock, Dublin 18, on 10 May 2020, with a breath alcohol concentration above the legal limit. At the District Court hearing, Garda Kelly said he saw the car being driven erratically, smelled alcohol on Flanagan’s breath, noticed slurred speech and heard him admit drinking earlier. Kelly said he formed the arrest opinion after Flanagan failed a preliminary breath test. A later evidential test recorded 63 micrograms of alcohol per 100 millilitres of breath.
The District Judge found that before the preliminary test, Kelly believed Flanagan had consumed alcohol but did not yet hold the opinion that he was incapable of proper control of the car. She also found that Kelly understood the failed test to confirm alcohol was present, but not to show its level or whether it exceeded a legal limit. The judge considered it illogical that this result alone could change his opinion and said she could not be satisfied that the arrest was lawful. She referred the legal question to the High Court in light of the Court of Appeal’s decision in DPP v McGovern.
The High Court said McGovern established that a failed test showing the presence of alcohol can, by itself, provide a sufficient basis for the arrest opinion, provided it is bona fide. It found no basis to treat Kelly’s arrest as unlawful. The court noted that, in this case, the failed test was considered alongside erratic driving, slurred speech and Flanagan’s admission that he had been drinking.
The court answered the stated question in the negative: the District Judge was not entitled, on the facts found and in light of McGovern, to reject the reasonableness of the opinion on that basis. It stressed that this did not limit the District Judge’s jurisdiction to make appropriate factual findings relevant to a legal ruling during or at the end of the trial. The High Court did not determine Flanagan’s guilt or make a final order in the underlying prosecution.