The High Court has reversed Joseph Cullen’s drunk-driving conviction after finding that the prosecution had not shown Gardaí consulted a doctor involved in his treatment before requiring a hospital blood sample.
Mr Justice Garrett Simons answered “no” to both questions referred by the District Court: whether the consultation requirement in section 14(4) of the Road Traffic Act 2010 had been met without evidence that the doctor was treating the accused, and whether the conviction was correct in law.
Cullen had been injured in a road traffic incident and was attending hospital. He was not under arrest. He complied with a Garda requirement to permit a specimen to be taken and chose blood rather than urine. The District Court heard that a Garda had obtained permission from a doctor, but there was no evidence that the doctor had any responsibility for Cullen’s treatment. The District Court nevertheless treated consultation with a doctor described as “in charge” as sufficient.
The High Court held that “a doctor treating the person” means a doctor with actual involvement in the patient’s treatment and care. A doctor’s familiarity with the patient’s condition, without such involvement, was insufficient. The judge said the requirement applied both to patients able to comply with a Garda request and to those who were incapacitated.
The judgment treated consultation with a treating doctor as a condition precedent to using the statutory power to require a sample from an injured person in hospital who had not been arrested. Because the prosecution had not established compliance, the sample was not lawfully obtained under section 14. The analysis certificate was therefore inadmissible, and the accused should have been acquitted.
The court ordered that the conviction be reversed. It did not set out a final costs order: the judgment said no costs order might be needed if legal aid had been granted. The parties were asked to agree the precise terms of the order, including costs if necessary, for the High Court Registrar’s approval; if they disputed its form, short submissions were to be filed within four weeks.