The High Court has ruled that a District Court judge could not dismiss a drink-driving case solely because the prosecution was brought under the provision covering driving with alcohol in the body. It remitted the case to the District Court for any further submissions and for the judge to exercise the statutory discretion and give judgment. The High Court did not decide whether the accused was guilty of either offence.
The case arose from a charge against Sean Kenny under section 49(4) of the Road Traffic Act 1961, as amended. The charge alleged that he drove on Tyrellstown Way, Blanchardstown, on 22 July 2005, with a breath-alcohol concentration above the statutory limit. The District Court heard evidence that a car was stopped in the road at about 1.20am and that Kenny provided breath specimens at a Garda station, producing a reading of 66mg per 100ml. Those were prosecution evidence recounted in the case stated, not findings of guilt.
At the end of the prosecution case, the defence argued that the Gardaí could not rely on Kenny moving the car after an instruction to do so, and that no other time of driving had been given in court. The prosecution said it would not rely on that movement. It asked the District Court to consider an alternative verdict under section 50(4), concerning being in charge of a vehicle with alcohol present. The defence submitted that the statutory word “may” left the judge discretion and that the facts did not support the separate section 50(4) offence.
The District Court judge dismissed the case, stating that the prosecution had been brought under section 49(4) and that he did not accept the prosecution’s submission. At the Director of Public Prosecutions’ request, he referred a question of law to the High Court: whether he was correct to hold that he had discretion not to convict under section 50(4) in those circumstances.
Mr Justice Herbert held that section 49(6)(b) specifically allows a court hearing a section 49 charge to consider a section 50 verdict. The word “may” gives the court discretion; it does not require conviction under section 50. The judge said the court must consider whether introducing the alternative offence would prejudice the accused or leave insufficient opportunity to answer it. If prejudice cannot be addressed, the court may decline to consider the alternative and acquit; otherwise, it may hear the matter and decide whether the accused is guilty or not guilty of the alternative offence.
The High Court answered the referred question in the negative. It held that the District Court had no jurisdiction to dismiss the case merely because the prosecution was brought under section 49(4) alone. The matter was returned to that court for any further submissions, exercise of its discretion, and judgment. No final verdict on the charge or alternative offence was made in this High Court judgment.