The Court of Appeal has dismissed an appeal by Andrew McTigue over a Garda’s incorrect warning about the driving disqualification that could follow a failure to provide a blood or urine sample.
The judgment, delivered by Mr Justice McCarthy on 11 December 2018, concerned a prosecution under section 12 of the Road Traffic Act 2010. The District Court had referred a question to the High Court after the accused opted to provide a urine sample but could not do so, and refused a blood sample, citing a fear of needles.
Garda Murrin told him that failing or refusing to comply was an offence and outlined the penalties on conviction. The Garda also said it could result in disqualification “of up to four years”. The judgment said that, for a first offence, the statutory minimum disqualification was four years.
The District Court judge asked whether the charge could be dismissed because the accused had received an incorrect warning about the consequences of failing or refusing to provide a sample. The High Court answered no. The accused appealed that ruling to the Court of Appeal.
Mr Justice McCarthy reviewed earlier decisions on what information must be given when a Garda requires a sample. He concluded that a person must be told that failure or refusal is an offence; generally, the person should also be told that the offence carries penalties, though the details need not be spelled out. He said there is no obligation to explain the possibility of disqualification. An additional warning about a special defence may be required in particular circumstances, which did not arise in this case.
The court said the purpose of the required information is to let a person understand the consequences and decide how to proceed, including whether to seek legal advice. It found that the incorrect statement about disqualification was not material to that purpose and did not undermine the accused’s substantive rights.
The court answered the District Court’s question in the negative and dismissed the appeal. It said the evidence before the District Court satisfied the requirements for a valid sample demand, and there was no legal basis to dismiss the charge because of the mistaken disqualification information. The judgment did not determine the accused’s guilt on the underlying charge.