The High Court has ruled that a roadside breath test was not invalidated because the garda did not wait 20 minutes before administering it, where the driver said he had consumed a few drinks but gave no time and the garda had no reason to suppose the drinking occurred within that period.
Ms Justice Miriam O’Regan delivered the judgment on 20 December 2023 in a consultative case stated from the District Court. The District Justice asked whether the test was invalid, making the arrest unlawful, in light of the driver’s statement and the fact that he had come from an address five minutes from where he was stopped. The High Court answered no to both questions.
The case arose from a prosecution under the Road Traffic Act 2010. The prosecution alleged that Patrick Foley drove on South Douglas Road, Cork, on 2 August 2021 with a breath alcohol concentration of 60mg per 100ml, above the stated limit of 22mg. The District Court heard evidence from both sides but had not made a final adjudication when it referred the legal questions to the High Court.
According to the case stated, Garda Prenderville stopped Foley after observing him driving at speed. The garda noted a strong smell of alcohol, somewhat slurred speech and glassy eyes, and required a roadside breath specimen. The result was “fail”. The garda said he formed the opinion that Foley had consumed an intoxicant to the extent that he could not have proper control of the vehicle after receiving that result.
Foley had voluntarily told the garda that he had consumed a few alcoholic drinks before driving, but did not say when. The garda made no inquiry about the timing and was unaware of the Dragor device’s instruction that at least 20 minutes should pass after a person’s last drink before using it. The judgment records that Foley’s side accepted the wait requirement came from the instruction manual, not a specific legal provision.
The court applied earlier decisions holding that a roadside officer need not wait unless the officer knows or has reason to suppose the person drank within the preceding 20 minutes. It found the statement about drinks before driving did not provide that reason. Nor did Foley’s having come from a property five minutes away identify when he last drank. The court was satisfied that Garda Prenderville acted bona fide and did not know or have reason to suppose alcohol had been consumed in the relevant period.
The High Court’s answers addressed the legal questions referred; the judgment does not itself record a final District Court verdict on the prosecution. On costs, the judge gave a provisional view that the DPP should receive costs, subject to the parties having 14 days to make written submissions if they disagreed. In default of submissions, the proposed order would be made.