The High Court ruled that Garda processing of a person arrested on suspicion of drink-driving may overlap with the 20-minute observation period before an Intoxilyzer test. It set aside the contrary approach in an earlier High Court judgment but declined to send five dismissed cases back to the District Court for further prosecution.
The five cases came before Ms Justice O’Regan by way of Cases Stated from the District Court. Each accused had been charged under section 4 of the Road Traffic Act 2010. The District Judge dismissed each charge, applying a 2016 judgment in DPP v O’Neill & Bohannon, which treated the custody-processing procedure and observation period as separate procedures that should not overlap.
The Director of Public Prosecutions argued that the earlier judgment should not be followed. Its submissions included that the earlier decision’s legal basis was unclear, that it conflicted with other High Court authorities, and that relevant case law had not been considered. The accused argued that their cases were virtually identical to Bohannon and that the District Judge was bound by it.
Justice O’Regan concluded that the earlier judgment had not reviewed significant relevant authority and was incorrect in holding that the procedures could not overlap. She relied on authorities concerning detention, Garda custody regulations and the observation period, and found that overlap was lawful. She also said that a breach of the custody regulations must be accompanied by evidence of prejudice before subsequently obtained evidence is excluded.
The DPP sought to have the five cases remitted for further prosecution. The judge refused. She noted that the DPP had not identified a clear statement in the earlier judgment establishing that its legal basis was that overlap was generally lawful, and concluded that, in light of issues identified by the Supreme Court in DPP v J.C., remittal was not appropriate.
The judgment answered the questions referred by the District Court as “No” and “Yes”. The source does not set out the wording of those two questions, so their specific subjects are not stated here.