The Court of Appeal has ruled that an arrest was valid in a drink-in-charge case after a motorist told gardaí he had pulled over for a rest while travelling home.
The court answered in the affirmative an amended case stated from the Circuit Court. It held that, on the facts set out, there was ample evidence for the court to conclude that the arresting garda was entitled to arrest Gerry Higgins under section 50 of the Road Traffic Act 1961, as amended.
The case arose from Higgins’s District Court conviction for being in charge of a vehicle in a public place with intent to drive while over the legal breath-alcohol limit. He appealed to the Circuit Court. At the close of the prosecution case, his counsel sought a direction, arguing that the arrest was unlawful because Garda Andrea McGovern had not formed an opinion that Higgins intended to drive or attempt to drive. Counsel also argued that the breath reading and other evidence flowing from the arrest were therefore unlawful.
The Circuit Court judge considered the circumstances, including the vehicle’s lights being on and Higgins’s statement that he had pulled in to rest. The judge considered that “rest” implied that Higgins intended to drive again. The issue reached the Court of Appeal through a consultative case stated, later amended to ask whether the arresting garda was entitled to make a valid arrest on the stated facts.
The Court of Appeal rejected the Director of Public Prosecutions’ argument that the statutory presumption of intent to drive in section 50(8) applied when a garda was forming an opinion during an investigation. The court said that presumption applied at the prosecution or trial stage. It also said that evidence a person was in charge of a vehicle while intoxicated could help a garda assess intent, depending on the circumstances.
The court noted that Higgins had told McGovern he had been drinking all day, had attended a christening in Dromore West and was heading home to Letterkenny when he became tired and pulled over. In the Court of Appeal’s view, his explanation implied he would resume driving after resting. Together with the garda’s evidence that she formed the relevant intoxication opinion and arrested him under section 50(10), this provided ample evidence to support the arrest.
The ruling answered the amended case stated in the affirmative. It addressed the validity of the arrest on the facts presented; the judgment does not itself state the result of Higgins’s Circuit Court appeal or make a new determination of his conviction.