Judgment: 2005-11-16 · Court archive

High Court rules 20-minute breath-test observation did not make detention unlawful

Quirke J answered the District Court’s case-stated questions in the negative, finding it was not open to the District Judge to rule that Paul O’Connor’s detention was unlawful on the evidence.

High Court · [2005] IEHC 371

Who, what, where, when and why

Who
  • Paul O’Connor (Defendant)
  • Garda Eugene Mulqueen
  • Garda Shay Leonard
  • David Reynolds
What

Quirke J answered the District Court’s case-stated questions in the negative, finding it was not open to the District Judge to rule that Paul O’Connor’s detention was unlawful on the evidence.

Where

Places mentioned in the report

  • Main Street
  • Terenure Garda Station
  • Rathfarnham
  • Terenure
When

Judgment:

Why

Reasons reported in the judgment

The case arose from a charge alleging that O’Connor drove on Main Street, Rathfarnham, on 15 June 2002, with alcohol in his body above the statutory breath-alcohol limit. He denied the offence. The District Court dismissed the charge after finding that the prosecution had not objectively justified prolonging his detention for a 20-minute observation period.

The High Court ruled that it was not open to a District Court judge to find that Paul O’Connor’s detention was unlawful while Gardaí observed him before taking statutory breath specimens. The court answered “No” to both questions referred in a case stated; the judgment does not set out those questions on the available final page.

The case arose from a charge alleging that O’Connor drove on Main Street, Rathfarnham, on 15 June 2002, with alcohol in his body above the statutory breath-alcohol limit. He denied the offence. The District Court dismissed the charge after finding that the prosecution had not objectively justified prolonging his detention for a 20-minute observation period.

Garda Eugene Mulqueen told the District Court he brought O’Connor to Terenure Garda Station at 1.20am, after seeing him driving about ten minutes earlier and forming the opinion that he had consumed an intoxicant. Garda Shay Leonard said he observed O’Connor for 20 minutes before obtaining two breath specimens. The statutory sampling provisions were acknowledged to have been applied lawfully. The machine’s printed statements recorded 82 microgrammes of alcohol per 100 millilitres of breath.

A Medical Bureau of Road Safety analyst, David Reynolds, testified that a 20-minute observation period was recommended as best practice to guard against mouth-alcohol contamination. The District Judge considered that UK police used questions as an alternative method and concluded that the prosecution had not justified the resulting detention. The High Court noted that there was no evidence about the UK legal regime or whether it allowed refusal to answer questions or required further detention.

Quirke J said the Supreme Court’s decisions in *DPP v Finn* and *DPP v McNiece* required objective justification for such an observation period, but that Reynolds had provided evidence explaining its purpose, which had not been displaced. The investigating garda had to start the statutory sampling process as soon as reasonably possible and practicable; the existence of a possibly faster alternative did not itself require him to use it.

The judge concluded that, on the evidence, it was difficult to see how sampling could reasonably have begun earlier and that the District Judge could not find O’Connor’s detention unlawful in the circumstances. The judgment answers the referred legal questions; it does not itself determine the original charge or record a conviction or acquittal.

Read the original court judgment

Something looks wrong?

Highlight the relevant passage or flag this article for review. Review requests do not immediately change the report.

Email a correction request

Request a review