The High Court ruled that a preliminary roadside breath test was not required before the arrest of a man charged with drink-driving in Gort, Co Galway. It answered “No” to the first question in a case stated by a District Judge and “Yes” to the third, concluding that the arrest was lawful and evidence from a breath test at Gort Garda Station was admissible.
The consultative case stated was brought under section 52 of the Courts (Supplemental Provisions) Act 1961. The District Court had not yet decided the charge. The High Court’s judgment, delivered by Kearns P. on 4 July 2014, addressed the legal questions referred to it.
The charge alleged that Colman Moran drove at Clonnahaha, Gort, on 6 January 2013 with a breath alcohol concentration of 95 microgrammes per 100 millilitres, above the stated limit of 22. The judgment recounts that Garda Darren Paul Lynch saw the vehicle travelling unsteadily and onto the grass verge. After stopping it, he noticed a strong smell of alcohol and slurred speech. He formed the opinion that the driver was under the influence and arrested him. At the station, two evidential breath samples produced an overall reading of 95/100.
The prosecution submitted that section 9(2) of the Road Traffic Act 2010 makes a preliminary breath test mandatory in specified circumstances unless the Garda believes the person should be arrested. It argued that the driver’s apparent intoxication brought the case within that exception. The defence submitted that the statutory test requirement had not been met and argued that the arrest was unlawful and the resulting evidence should be excluded.
The High Court held that the statutory wording created an exception where a Garda was of the opinion that a person should be arrested on suspicion of an offence. It found that Garda Lynch had formed a reasonable, independent opinion on the basis of the driving, smell of alcohol and slurred speech. The Court said a roadside test was not necessary to justify arrest in those circumstances.
The Court said the second question—whether an opinion formed under one statutory section could satisfy a requirement under another—did not arise. It added that, if necessary, it would have been inclined to agree with the prosecution that section 9(9) preserved other legal arrest powers. It answered the third question in the affirmative. The judgment did not convict the defendant or determine the drink-driving charge; it concluded that the arrest was lawful and the station breath-test evidence admissible.