The High Court has ruled that the procedure used to offer a blood sample to a man arrested on suspicion of drink-driving in Westport complied with the Road Traffic Act, despite an error on a form completed by the doctor.
Gerard Kennedy appeared before Westport District Court after being arrested in the early hours of July 5, 2008. Garda Brian Murphy had observed his vehicle being driven dangerously at Knockrooskey in Westport. A blood sample was subsequently taken at Westport Garda Station.
The Medical Bureau of Road Safety later reported a concentration of 197 milligrammes of alcohol per 100 millilitres of blood.
The District Court referred a legal question to the High Court before deciding the charge. The issue concerned section 18 of the Road Traffic Act 1994, which requires a Garda to offer an accused person one of two sealed blood or urine samples so that it can be retained for independent analysis.
Kennedy's solicitor argued that the statutory requirement had not been met because the doctor physically handed Kennedy one container while both samples had been in the doctor's hands. McMahon J rejected that argument. He held that an offer does not require the Garda physically to hold or hand over the sample. It was sufficient that Garda Murphy told Kennedy he could retain one container and supplied the written notice explaining his right to do so.
A separate issue arose because the doctor signed the prescribed form stating that he had given both containers to a Garda, although the evidence established that he handed one directly to Kennedy.
McMahon J held that this mistake concerned a non-essential matter which was not itself required by section 18. The error meant the statement could no longer carry its normal evidential presumption, but the prosecution could prove what happened through other evidence.
The judge stressed that mandatory provisions in penal legislation must normally be strictly complied with, but minor technical errors which cause no injustice are not automatically fatal. He answered the District Court's question in the affirmative, finding sufficient compliance with section 18(2).