The High Court has answered “No” to a District Court judge’s question about whether 20-minute observation periods before Evidenzer breath tests made the detention of two accused men unlawful.
The cases concerned Ronan Stack and John Foley, whose identities are stated in the judgment. Both were arrested under the Road Traffic Act 2010 and taken to Bandon Garda Station, where Gardaí told them they would be observed for 20 minutes before breath testing. Each provided two breath specimens. The recorded readings were above the limits permitted by road traffic legislation.
At their District Court proceedings, Garda witnesses said they had been trained by the Medical Bureau of Road Safety to apply the observation period. In Stack’s case, Sergeant Thomas Lehane said it was necessary to avoid mouth-alcohol contamination and obtain an accurate reading. In Foley’s case, Garda Kieran Hayes said his training described the period as best international practice. The defence pointed to the Evidenzer manufacturer’s guidance, which did not require a 20-minute period, and raised the machine’s filters as relevant to mouth-alcohol contamination.
The Macroom District Court referred the legal question to the High Court under the consultative case stated procedure. The question was whether the period before the formal demand for breath specimens was an unnecessary and unreasonable prolongation of detention, making the detention unlawful and the breath evidence tainted and inadmissible.
Mr Justice Max Barrett reviewed earlier decisions on delays in breath testing. He said a deliberate, defined period added to detention must be justified by objective reasons. Appropriate evidence could come from a Garda witness alone, and the procedure did not have to be set out in legislation if it was shown to be reasonably necessary for the purpose of the arrest. The court had previously been able to take judicial notice of the 20-minute period used with the Intoxilyser, but that did not prevent the prosecution from justifying a period for another machine through evidence.
The judge found that the Garda evidence in both cases was uncontroverted and provided reasonable, objective grounds for the observation periods. He therefore answered “No” to the District Court’s question in each case. The judgment resolved that question of law; it did not determine the men’s guilt or make a final ruling in their trials.