The High Court upheld the dismissal of a drink-driving charge after finding that a breath-test certificate was not “duly completed” because the accused signed it before the garda who administered the test.
In a judgment dated 21 April 2009, Mr Justice John MacMenamin answered “yes” to both questions referred by the District Court. He held that, on the particular facts, the certificate did not qualify as duly completed under section 21(1) of the Road Traffic Act 1994, and that the District Judge was correct to dismiss the charge.
The case arose from a prosecution alleging that Lloyd Freeman drove in Dublin on 20 October 2006 with excess alcohol in his breath. Garda evidence was that two breath specimens were taken and the test recorded 60 milligrams of alcohol per 100 millilitres of breath. The District Judge found that Freeman signed both copies of the section 17 certificate before Garda Paul Dempsey signed them. Dempsey’s disclosed witness statement recorded that sequence.
The District Judge ruled that the certificate was not duly completed and that the prosecution could not rely on the statutory evidential presumption. The prosecutor sought a case stated on whether that ruling and the dismissal were legally correct.
The prosecution argued in the High Court that the garda’s later signature corrected a technical omission and that the certificate was signed by the time it was handed over. The judge acknowledged that the sequence error appeared technical and that there was no evidence of confusion or substantive injustice. But he considered himself bound by the earlier High Court decision in DPP v Thomas Keogh, which addressed the same signing sequence. He was not persuaded that Keogh was clearly wrong or decided without regard to a relevant point.
The court held that the statutory requirement meant the garda had to sign the statements before the recipient. Because the garda had not signed first, the certificate did not attract the statutory presumption of evidential sufficiency. The judge also declined to remit the case to the District Court: the prosecutor had accepted that no other evidence was available there to establish the certificate’s contents, including the readings.
The ruling was made on a case stated, not a judicial review. The High Court answered the referred questions on the facts found below; it did not order a retrial or make a broader finding about the accuracy of the breath test.