The Supreme Court allowed the Director of Public Prosecutions’ appeal in a case concerning a seven-minute delay before a breath test, ruling that the delay did not make the defendant’s detention unlawful on the facts stated.
The appeal followed the District Court’s dismissal of a prosecution against Robin Fox for being in charge of a vehicle while over the statutory alcohol limit. The District Court had ruled the breath-test evidence inadmissible because Garda Ger Hardiman gave no explanation for observing Fox for 27 minutes, rather than the 20-minute period required by Garda guidelines.
The case was heard in the Supreme Court as an appeal by way of case stated from a High Court decision. The Supreme Court noted that the first 20 minutes of observation were accepted as lawful. The issue was the additional seven minutes before the breath samples were taken.
The evidence recorded in the case stated was that Garda Cheryl Kelly found Fox slumped over the wheel of a car with its engine running on Burlington Road, Dublin 4, at about 2.30am on 4 June 2002. She arrested him on suspicion of being drunk in charge. At Pearse Street Garda Station, Hardiman observed him before requiring two breath samples. The samples were taken at 3.24am and 3.26am, with a recorded result of 66 microgrammes of alcohol per 100 millilitres of breath. Hardiman agreed in cross-examination that he had observed Fox for 27 minutes and did not explain why the period exceeded 20 minutes.
The Supreme Court distinguished the case from an earlier ruling about the standard 20-minute observation period. That period was a prescribed practice applied systematically and therefore required objective justification. Here, the extra seven minutes were not a prescribed extension. The Court treated them as a delay in moving to the next stage of the process.
The judgment said there was no statutory time limit for completing the breath-test procedure, while Gardaí remained obliged to deal with an arrested person with reasonable expedition and without unreasonable delay. In the absence of special circumstances, such as evident malicious intent or purpose, the Court concluded that the seven-minute delay was not, on its face, so unreasonable as to render otherwise lawful detention unlawful.
The Supreme Court answered the District Court judge’s question in the negative and allowed the DPP’s appeal by way of case stated. The judgment did not determine guilt or direct a conviction; it overturned the legal basis on which the District Court had dismissed the summons.