The High Court ruled that a man’s arrest at a Wicklow alcohol testing checkpoint was lawful, answering a District Court judge’s first question in a consultative case stated. The court did not address whether evidence gathered after the arrest was admissible: it said that second question did not arise once it found the custody lawful.
The judgment, delivered by Mr Justice Hedigan on 2 July 2009, followed a question from District Judge John Coughlan of Wicklow District Court. The case concerned whether Garda Trevor Conroy had reasonable grounds to arrest Shay O’Rourke under section 49 of the Road Traffic Act 1961.
The District Court heard that O’Rourke was stopped at a mandatory alcohol testing checkpoint at Bollarney, Wicklow, shortly after midnight on 24 November 2007. He provided a roadside breath specimen, which returned a “fail” result. Garda Conroy then noticed an smell of an intoxicant and bloodshot eyes, and arrested him on suspicion of driving while unable to maintain proper control of a vehicle.
O’Rourke was later charged with an offence under section 49(4), relating to alcohol concentration in breath. At the Garda station, a breath sample recorded 42 microgrammes of alcohol per 100 millilitres of breath. During cross-examination, Garda Conroy agreed that O’Rourke had been driving normally and said he did not know what level of mouth alcohol could produce a roadside “fail” result or what effect it might have on a driver’s control.
The defence argued that the Garda’s description of the suspected offence did not match the wording of section 49(1), and that the observations and roadside result did not provide a rational basis for the arrest. It sought a direction that the arrest was unlawful and that evidence obtained afterwards was inadmissible. The prosecutor argued that an arresting Garda need not identify the precise drink-driving offence before arrest, and that the surrounding circumstances supported a reasonable suspicion.
Justice Hedigan said section 49 created distinct drink-driving offences, but a Garda making an arrest did not have to determine which one would ultimately be charged. He found the Garda’s slightly inaccurate description of section 49(1) was a trivial error, given the evidence that both the Garda and O’Rourke understood the arrest concerned suspected drink-driving.
The judge also held that the suspicion had a reasonable basis. He cited the roadside test, the smell of an intoxicant, the bloodshot eyes and the circumstances of driving after midnight on a Friday. He concluded that O’Rourke was in lawful custody and answered the first question in the case stated “yes”. The District Court had reserved its decision on the charge pending the High Court’s response; the High Court did not determine guilt or the admissibility of the station evidence.