The High Court has said a prosecution for an alleged drink-driving offence should not be dismissed because the arresting Garda was not asked whether he observed a 20-minute waiting period before a roadside breath test. The court did not decide whether Gardaí are generally required to ask about recent drinking or observe a driver before testing.
Mr Justice Binchy gave the ruling on a consultative case stated from the District Court, which had referred three questions about roadside breath testing under the Road Traffic Act 2010. The High Court answered none of the first two questions, describing them as moot on the evidence and procedural history of this case.
The case arose from a checkpoint at Hazelhill, Ballyhaunis, in November 2013. The case stated said Garda Kenny stopped a vehicle driven by Noel Slattery, who provided a roadside breath sample that returned a “fail” reading. Slattery was arrested and later provided a urine sample. A certificate presented to the District Court recorded 281 milligrammes of alcohol per 100 millilitres of urine.
At the close of the prosecution evidence in the District Court, Slattery’s solicitor submitted that he had not been asked whether he had taken “nil by mouth” during the 20 minutes before the roadside test. The device’s operating instructions, cited in submissions to the High Court, said at least 20 minutes should elapse after a person’s last drink. The judge noted that those instructions had not been entered into evidence in the District Court.
The defence argued that a failure to follow the instructions undermined the breath-test result, the Garda’s opinion supporting the arrest and the subsequent demand for a urine sample. The Director of Public Prosecutions argued that the Garda’s opinion was not challenged in cross-examination and was based on the failed test and the driver’s speed and abrupt stop.
Justice Binchy said the Garda had testified that he formed the required opinion based on the breath-test result, and that he had not been cross-examined about its reasonableness or bona fides. The operating instructions and whether the Garda had asked about recent drinking or observed the driver were not tested in evidence. The judge said the Garda was not obliged to give evidence of full compliance with the device’s operating instructions to prove the offence.
The court directed that the District Court determine the proceedings on the basis that the Garda had formed a lawful opinion before the arrest. It said the charges should not be dismissed on a ground relating to the formation of that opinion. The ruling did not determine the charge or record a conviction; those proceedings remained for the District Court to decide.