The High Court has quashed a Circuit Court decision convicting Conor McGuinness of drug driving, finding that the Circuit Court misapplied the law governing when a Garda may require a blood sample.
In a judgment delivered on 27 May 2024, Ms Justice Marguerite Bolger held that the Garda’s evidence of an opinion that Mr McGuinness had committed an offence under section 4(1) of the Road Traffic Act did not establish an opinion that he had committed the separate offence under section 4(1A). The judge said the Circuit Court could not treat section 4(1A) as included in, or “tagged on” to, section 4(1).
The case arose from a checkpoint stop on 7 May 2021. The prosecuting Garda told the Circuit Court that he stopped Mr McGuinness while he was driving, noticed a strong smell of cannabis, searched the car and found a bag of cannabis. An oral-fluid test was positive for cannabis. The Garda said he arrested Mr McGuinness on suspicion of drug driving and required him to provide a blood specimen at a Garda station. Analysis confirmed cannabis in the sample.
The Garda’s evidence was not challenged. Mr McGuinness’s solicitor argued that the Garda had not said he believed the specific section 4(1A) offence had been committed, as section 13B required before a blood specimen could be demanded. The Director of Public Prosecutions argued that the Garda’s evidence covered that offence.
The Circuit Court rejected the challenge. On judicial review, the High Court found that section 4(1A), introduced by the Road Traffic Act 2016, created a distinct offence. Because section 13B is a penal provision, the judge said it had to be strictly construed: compliance could not be established by implication or by showing that the Garda could have formed the required opinion.
The High Court concluded that the Circuit Court had made a significant error in interpreting the legislation. As a result, the Garda had no power under section 13B to require the blood specimen, and the certification of cannabis levels had no status as evidence in court.
The court granted an order of certiorari quashing the Circuit Court decision. It did not decide whether the case should be remitted; it said counsel would be heard further on that issue and listed the matter for 19 June 2024.