The High Court has ruled that a prosecution for refusing a breath test does not necessarily require Gardaí to complete the Intoxilyser’s preparatory steps when the accused has refused to comply with the requirement. It remitted the unfinished case to the District Court, which must decide the facts.
Mr Justice Hedigan delivered the ruling on 15 October 2007 in a consultative case stated by District Judge Catherine Murphy. The District Court had not reached a final decision on the complaint against Sean Malone, who was charged with refusing to provide two breath specimens at Terenure Garda Station on 20 April 2006. The High Court’s answer addressed the law; it did not determine whether Malone committed the offence.
The case stated recorded evidence that Garda Fiona O’Connell observed Malone driving on Templeogue Road late on 19 April 2006 and arrested him on suspicion of a drink-driving offence. At the station, she said, he initially declined several requests to go to the Intoxilyser room, then went there at 12.23am. She explained the statutory requirement several times, and he repeatedly said he did not understand. O’Connell did not activate or prepare the machine, attach a mouthpiece or offer one to him. Garda Paul O’Hanlon initially described Malone as having refused a sample, but under cross-examination said Malone had said he did not understand and had not refused to provide one.
The defence argued that Malone had not been given an opportunity to provide a sample because the machine was not prepared, and that the evidence did not establish a refusal. The prosecution submitted that his conduct amounted to refusal and that neither proof he understood the requirement nor an Intoxilyser printout was necessary in these circumstances.
The High Court said it would be overly formalistic to require Gardaí to complete all preparatory steps and present the machine if the court hearing the evidence found that the accused had already refused to comply. It answered yes to whether an offence under section 13 could arise in that situation. It said there was evidence on which the District Judge could make such a finding, but stressed that no finding had yet been made because the case had not concluded.
Questions about the missing printout no longer arose. Whether Malone’s conduct was obstructive or unreasonable, and whether it constituted refusal, remained for the District Judge to decide on the evidence. The High Court remitted the case to the District Court.