The High Court has said the prosecution does not have to prove whether a driver was a “specified person” to secure a conviction under the ordinary drink-driving charge in section 4(4)(a) of the Road Traffic Act 2010.
Mr Justice Charleton gave that opinion on 10 December 2012 in a consultative case stated from the District Court. The question arose in a prosecution of John Kelly, who was charged with driving with 70 microgrammes of alcohol per 100 millilitres of breath, above the general limit of 22 microgrammes.
The District Court had heard the prosecution evidence but had not made a final decision on the complaint. The District Judge referred the legal question to the High Court after defence counsel argued that the prosecution had to establish that Kelly was a “non-specified person”. The judge found there was no evidence that he was either a specified or non-specified person.
The case stated said the vehicle Kelly was driving collided with another vehicle at about 5am on 8 January 2012 on Ballygall Road East, Finglas. The prosecuting Garda described his speech as slurred, his eyes as glazed and an overwhelming smell of alcohol. At Ballyfermot Garda Station, two breath specimens produced identical readings of 70 microgrammes per 100 millilitres. These were prosecution evidence recounted in the case stated, not findings by the High Court about guilt.
The High Court explained that specified persons, including certain learner, professional and other drivers, are subject to a lower alcohol limit of 9 microgrammes. It said the ordinary charge applies to drivers generally, including people who may also fall within a specified category. A driver’s specified status therefore does not exempt them from the general offence if the prosecution proves the ordinary limit was exceeded.
The court’s opinion was that, for a section 4(4)(a) prosecution, the prosecution need not prove either that the defendant was or was not a specified person. It must prove driving within the relevant time and a breath reading above the general limit. If the prosecution instead charges the lower-limit offence under section 4(4)(b), it must prove that the defendant was a specified person. The judgment also addressed the possibility of a lesser included offence where specified status is not proved: conviction on that basis requires proof that the reading exceeded the general limit.
The High Court answered the legal question; it did not convict or acquit Kelly. The judgment left it to the District Judge to decide whether the evidence heard at trial warranted conviction.