Judgment: 2008-02-15 · Court archive

High Court rules Arklow drink-driving arrest unlawful after Garda mistook attempted driving for being in charge

The court answered a District Court case stated in the negative, finding the arrest under section 50 irrational and the resulting blood evidence inadmissible. It did not decide the underlying complaint.

High Court · [2008] IEHC 457

Who, what, where, when and why

Who
  • Gerard O’Neill
What

The court answered a District Court case stated in the negative, finding the arrest under section 50 irrational and the resulting blood evidence inadmissible. It did not decide the underlying complaint.

Where

Places mentioned in the report

  • Arklow
When

Judgment:

Other dates in the report
  • 30 September 2005

    The judgment, delivered by Mr Justice Edwards on 15 February 2008, answered a question referred by the District Court in the negative. The referral arose from a charge alleging that O’Neill was in charge of a vehicle in Arklow on 30 September 2005, with intent to drive, while over the statutory alcohol limit. The District Court had reserved its decision pending the High Court’s answer.

Why

Reasons reported in the judgment

The High Court ruled that a Garda’s arrest of Gerard O’Neill under the “in charge” provisions of road traffic law was unlawful after the court found the Garda’s view irrational in the circumstances. The court held that a blood sample taken after the arrest was inadmissible, but did not decide the District Court complaint against him.

The High Court ruled that a Garda’s arrest of Gerard O’Neill under the “in charge” provisions of road traffic law was unlawful after the court found the Garda’s view irrational in the circumstances. The court held that a blood sample taken after the arrest was inadmissible, but did not decide the District Court complaint against him.

The judgment, delivered by Mr Justice Edwards on 15 February 2008, answered a question referred by the District Court in the negative. The referral arose from a charge alleging that O’Neill was in charge of a vehicle in Arklow on 30 September 2005, with intent to drive, while over the statutory alcohol limit. The District Court had reserved its decision pending the High Court’s answer.

A Garda told the District Court she saw O’Neill’s car stopped in the middle of the road, engine running. She said its indicators were operated, its brake lights went out, and it appeared about to move off. She approached and found O’Neill in the driver’s seat. A blood sample later showed 169 milligrams of alcohol per 100 millilitres of blood, according to the case stated.

The District Judge found that O’Neill had attempted to drive and that the Garda’s opinion was bona fide but mistaken. O’Neill’s counsel argued that the facts showed an attempt to drive, which fell under section 49, rather than the section 50 offence for being in charge with intent to drive but not driving or attempting to drive. Counsel submitted that the arrest was therefore unlawful and the blood evidence inadmissible. The prosecution argued that sections 49 and 50 were complementary and that the arrest was lawful.

Justice Edwards said the provisions addressed related forms of the same road safety concern, but each contained a separate arrest power. For an arrest under section 50 to be valid, the Garda’s opinion that a section 50 offence was being committed had to be bona fide and rational.

The judge found that the car never moved, but that the engine was running and the Garda saw the indicators and brake lights operated while O’Neill was awake in the driver’s seat. Applying the statutory definition of driving, which includes managing and controlling a vehicle, the court said the only rational interpretation was that O’Neill was attempting to drive. It therefore found the opinion that he had committed a section 50 offence irrational.

The court held that the arrest and detention violated O’Neill’s right to liberty, and that the blood sample and its analysis were inadmissible. Although a section 49 conviction could theoretically follow a prosecution under section 50, the District Court could only convict if there was admissible evidence of that offence. The High Court did not enter an acquittal or determine the complaint; it answered the legal question referred to it.

Read the original court judgment

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