The Court of Appeal ruled that a Garda who entered the curtilage of a dwelling under section 7 of the Road Traffic Act 2010 to require a roadside breath sample could also arrest a driver for drunk driving on the property after the test failed.
The ruling, delivered on 28 May 2019, answered a legal question referred by Circuit Court Judge Gerald Keys. The consultative case stated arose during an appeal heard at Clifden Circuit Court on 24 October 2017 against Padraig Canavan’s District Court conviction for drunk driving.
The case stated said that Sergeant Edward Cronin saw a van near a junction on the Cill Chiaráin to Carna Road in the early hours of 31 January 2016. The driver appeared slumped over the steering wheel. Cronin said he was concerned about the driver’s ability to operate the van safely. When he tried to stop it, the driver continued into the driveway of a house, and the sergeant followed.
According to the case stated, Cronin entered the premises under section 7, required a roadside breath sample under section 9, and received a failed reading. He then formed the opinion that the driver was incapable of having proper control of a vehicle because of an intoxicant and arrested him. At the Garda station, Canavan provided a blood specimen that was over the legal limit.
Canavan’s counsel argued that section 7 allowed entry for one of two purposes, not both: requiring a sample or making an arrest. They submitted that once Cronin had required the roadside test, his power to arrest had been exhausted. They also argued that Canavan’s statement that the sergeant was “on private property now” withdrew any implied consent to enter.
The Director of Public Prosecutions argued that section 7 extended Garda powers to enter the curtilage of a dwelling, in light of the legal gap identified in earlier case law, including DPP v McCreesh.
The Court of Appeal held that the entry was lawful and that the Gardaí remained entitled to arrest Canavan for drunk driving after requiring the preliminary sample. It rejected the argument that the sample requirement exhausted their powers. The court answered “yes” to the question referred: whether a Garda who entered the curtilage under section 7 and required a sample under section 9 could arrest the accused under section 4(8) while still on the property.
The judgment answered that legal question in the consultative case stated. It does not report the result of the underlying conviction appeal.