The Supreme Court ruled that a person charged under section 13(2) of the Road Traffic Act 1994 could not be convicted solely for failing to follow the manner of exhaling indicated by a Garda, provided the statutory wording did not make that manner a separate requirement.
In a judgment delivered on 28 July 2005, Mr Justice McCracken agreed with the reasoning and judgment of Mr Justice Kearns and added his own observations. The case concerned the Director of Public Prosecutions’ complaint against Brigid Moorehouse. The judgment identifies her as the defendant but does not set out the underlying facts of the alleged incident.
Section 13(1)(a) allowed a Garda, in the circumstances specified by the Act, to require two breath specimens and to indicate how the person should comply. Section 13(2), under which Moorehouse was charged, made it an offence to refuse or fail to comply forthwith with “a requirement under subsection (1)(a)”.
McCracken said that requirement was to provide two breath specimens. The provision did not separately make it an offence to disregard the manner indicated by the Garda. He contrasted section 13 with other provisions that expressly distinguished between failing to comply with a requirement and failing to comply in the manner directed. Because section 13(2) was penal and could carry imprisonment, he said an offence had to be clearly specified rather than implied.
The court’s answer did not mean that any exhalation counted as compliance. McCracken said that if the way a person exhaled meant the alcohol concentration could not be determined, the person had not provided the two specimens required by the section.
The judgment answered the first question in the case stated “No”: following the indicated manner was not itself a requirement whose breach constituted the charged offence. It answered the second that compliance was insufficient unless the exhalation enabled the alcohol concentration to be determined. The judgment does not record a separate order on conviction, sentence or costs.