The High Court has ruled that a separate warning was not required before a 20-minute observation period ahead of a breath test, where that period was part of the detention following an arrest for the purpose of obtaining samples.
The decision came on a case stated appeal from the District Court. The District Court judge had dismissed a charge against Garrett Foley after finding that the prosecution had not proved he was told that he was detained for observation, or given the reasons for that detention. The judge held the detention unlawful and excluded the breath-test evidence.
The charge alleged that Foley drove on Benburb Street, Dublin 7, on 6 January 2001, with alcohol in his body and that a breath test within three hours showed more than the statutory limit. He pleaded not guilty.
According to the case stated, Garda Shane Curran stopped Foley at about 4.39am and arrested him a minute later, saying he was under the influence of an intoxicant to such an extent that he could not properly control a vehicle. Curran took him to Store Street Garda station. A custody record was completed and Foley received information under the Garda custody regulations.
The case stated said Curran observed Foley from 5.05am to 5.25am, during which Foley took nothing by mouth. Garda Cathy O’Neill then explained the intoxilyzer and made a statutory requirement for breath samples. The test produced a result of 73 microgrammes of alcohol per 100 millilitres of breath.
The High Court considered whether the observation period was a separate detention requiring another warning, or part of the detention initiated by the arrest for obtaining samples. O’Neill J referred to earlier Supreme Court rulings that an observation period must be justified as reasonably necessary for a valid test. The judge held that, where justified, it formed an integral part of the overall detention.
In this case, the District Court judge had taken judicial notice of the need for the 20-minute period, and the High Court held he was entitled to do so. O’Neill J concluded that the arrest and subsequent information given at the station were sufficient for the overall detention; no additional caution or warning was needed at the start of the observation period. The court found no constitutional breach on that ground and said the District Court judge was wrong to exclude the test evidence and dismiss the charge.
The High Court answered the case-stated question in the negative. The judgment does not itself record a conviction or sentence; it resolves the legal question referred on the appeal.