Judgment: 2011-02-18 · Court archive

High Court refuses challenge to breath-test conviction

The court held Gardaí were not required to explain the blood-or-urine defence or request an alternative sample after a failed breath test.

The High Court · [2011] IEHC 118

Who, what, where, when and why

Who

See the report below for the parties involved.

What

The court held Gardaí were not required to explain the blood-or-urine defence or request an alternative sample after a failed breath test.

Where

Places mentioned in the report

  • Terenure Garda Station
  • Garda Station
  • Terenure
  • Dublin
When

Judgment:

Why

Reasons reported in the judgment

The High Court refused an application for judicial review challenging a woman’s District Court conviction for failing or refusing to provide breath specimens. The court held that Gardaí had no duty to explain the statutory blood-or-urine defence or to request an alternative sample after the breath-test failure.

The High Court refused an application for judicial review challenging a woman’s District Court conviction for failing or refusing to provide breath specimens. The court held that Gardaí had no duty to explain the statutory blood-or-urine defence or to request an alternative sample after the breath-test failure.

The applicant was arrested in July 2008 on suspicion of drink-driving and taken to Terenure Garda Station. Gardaí required her to provide two breath specimens. She repeatedly tried to blow into the testing machine, but no specimen registered. She was later convicted in the Dublin Metropolitan District Court under section 13 of the Road Traffic Act 1994.

At that trial, the applicant and her general practitioner gave evidence that she had asthma and suffered a panic attack at the station, which prevented her from providing a sample. The District Court judge found a “special and substantial reason” for the failure. However, the judge considered that the law required her to offer to provide a blood or urine sample to rely on the statutory defence, and that Gardaí had no obligation to tell her about that requirement. The judge convicted her and imposed a four-year driving disqualification and a €250 fine.

The applicant argued in the High Court that Gardaí should have informed her of the defence or requested a blood or urine sample. She also challenged the constitutionality of the law and sought a declaration that it was incompatible with the European Convention on Human Rights. The respondents argued that the statute imposed no such duty and that judicial review could not be used to re-examine the merits of the conviction.

Mr Justice Michael Hanna held that section 23 required an accused to establish both a special and substantial reason for failing to provide breath specimens and that, as soon as practicable, she complied or offered to comply with a requirement for a blood or urine sample. The statute did not require Gardaí to make that requirement or advise a suspect about possible defences. The judge also held that the offence was one of strict liability.

The judgment noted conflicting affidavits about whether the applicant’s sister had told Gardaí at the scene about her tendency to panic. No cross-examination was sought. The judge relied on Garda affidavits that he described as sworn and undisturbed, and was not satisfied that Gardaí had been told of the applicant’s asthma or panic attacks at the station.

The court concluded that the constitutional guarantees of fair procedures and trial in due course of law did not require Gardaí to advise an arrested person about the defence or arrange an alternative sample. It also rejected the Convention arguments, reasoning that the relevant provisions did not require Gardaí to explain possible defences and that the applicant had been informed of her right to legal representation. The relief sought was refused. The judgment did not quash the District Court conviction.

Read the original court judgment

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