The High Court ruled that the designated doctor did not have to witness a woman provide a urine sample in a drink-driving prosecution, and that the procedure described in the case stated complied with the relevant statutory provisions.
The judgment, delivered by Mr Justice McDermott on 15 June 2018, arose from a consultative case stated by District Court Judge Patrick Durcan under section 52 of the Courts (Supplemental Provisions) Act 1961. The District Court sought the High Court’s opinion on the law after hearing evidence and reserving judgment.
The accused, Marian O’Donoghue, was charged in connection with an alleged drink-driving offence on 27 June 2006 in Bóthar na Luachra, Shannon, County Clare. The charge alleged that she drove while alcohol was present in her body, with a urine alcohol concentration of 200 milligrams per 100 millilitres. The High Court was considering the procedure for obtaining the sample, not determining the underlying charge.
According to the case stated, Garda Barry Doherty required O’Donoghue to provide a blood or urine sample, and she chose urine. A designated doctor supplied a jug from a sealed urine kit. O’Donoghue went into a toilet cubicle while Garda Hanley, a female garda, stood at the door and observed her provide the sample. O’Donoghue then carried the jug to the doctor and handed it to him.
Judge Durcan considered that the doctor’s statutory responsibilities required the sample to be provided directly in the doctor’s presence, and asked whether that interpretation was correct and, if so, whether dismissal of the prosecution was justified. The prosecution argued that garda supervision addressed contamination and was a policing function.
Mr Justice McDermott held that the law did not require the doctor to be present when the urine was passed or to observe it. Nor did it require the accused personally to hand the receptacle to the doctor. He distinguished urine collection from blood sampling, which the statute assigns to the designated doctor. The High Court also noted that there was no suggestion that the sample came from anyone other than the accused.
The court answered the legal question in the negative: Judge Durcan’s interpretation was incorrect. It said the second question—whether dismissal was correct—did not arise because it had been posed on the assumption that the first question would be answered in the affirmative. The High Court therefore did not decide that the prosecution should be dismissed or resolve the charge itself. It added that, on the stated facts, no possible prejudice to the accused had arisen and that a procedural failure, even if established, would not have justified dismissal in the circumstances.