IEDC 16 · District Court

THE DISTRICT COURT DISTRICT COURT AREA OF DUNGARVAN DISTRICT NO 21 DIRECTOR OF PUBLIC PROSECUTIONS PROSECUTOR

- AND - GARY HYNDS ACCUSED Judgment of Judge Brian O’Shea delivered at Dungarvan District Court on the 15th day of October 2018

1. This is an application for a direction at the close of the prosecution case. The accused is charged with having committed an offence contrary to section 4(1A) of the Road Traffic Act 2010 as amended by section 8 of the Road Traffic Act 2016. In essence the section provides that unless a person has a relevant “medical exemption certificate” they commit an offence if they drive or attempt to drive a mechanically propelled vehicle in a public place while there is present (within 3 hours after so driving or attempting to drive) in their body an unlawful concentration of certain specified drugs in their blood.

2. The application revolves around two issues: (1) the section 15 certificate issued by the designated doctor, and (2) as the charged offence may only arise where a blood specimen is provided, whether an accused must be warned of this fact when deciding whether to give a blood sample or opting to provide urine.

3. The garda testified that section 15 was complied with in the following manner: (1) the designated doctor processed the blood specimens and sealed bottles and the containers,

(2) he then completed the section 15 certificate, and (3) he then handed the two sealed plastic containers to the garda. The section 15 certificate was presented to the court as an exhibit for the prosecution. The process followed by the doctor is set out in the certificate. The content of the certificate is in strict compliance with the procedure set out in section 15.

4. The accused argues that section 15 requires that: (1) the doctor processes the specimens and seals the bottles and containers, (2) then hands the sealed containers to the garda, and (3) then completes the certificate. That is to say that the doctor must hand the sealed containers to the garda and then complete the certificate rather than the other way around. The accused argues that as a result of this procedural error the certification by the doctor cannot be relied upon and that the evidential presumption enjoyed by the certificate has been rebutted owing to the conflict between the garda testimony and the doctor’s certificate.

5. As a general observation, judges of the District Court are routinely required to adjudicate upon technical issues that arise in drink and drug driving related cases. The arguments put forward span the full spectrum from meritorious to absurd. For the avoidance of doubt this court is of the opinion that an argument is no less worthy because it is based on a technical legal issue rather than turning on the facts of the case. The overwhelming majority of arguments in these cases relate to purported flaws in the implementation of statutory and regulatory procedures. It is for that reason that it can be said with confidence that the recent decision of the five-judge Supreme Court, delivered by O’Malley J in DPP v Avadenei [2017] IESC 77 is one of the most significant decisions in this area for many years.

6. Avadenei is a drink driving case. The principal issue in that case was whether a document adduced in evidence against an appellant was in the form prescribed by the legislation and regulations and, if not, whether it should nonetheless be admissible evidence as to the truth of its content. The document in issue is commonly referred to as a “section 13 statement” and is printed in duplicate by an apparatus that measures the concentration of alcohol in the breath. If admissible, the statement enjoys an evidential status that it otherwise would not.

7. In Avadenei, O’Malley J reviewed and analysed a multitude of drink and drug driving related decisions of the Superior Courts. She identified four categories of “flaws in the implementation of statutory procedures”. Three of the four categories are relatively straightforward and so too are the consequences, that is to say, the evidence will be invalidated if: (1) a precondition for the exercise of the power to require a specimen has not been met (e.g. unlawful arrest); (2) if the power purportedly exercised was not a power conferred by statute (e.g. demand made of driver who was not obliged to comply);

and/or (3) the power is erroneously exercised or procedures erroneously followed in such a fashion that the resulting evidence does not prove what it was intended to prove.

O’Malley J alluded (at paragraph 78 of the judgment) to the fact that where evidence is challenged as being the fruit of a breach of the constitutional rights of an accused it falls to be considered under the test enunciated by Clarke J, as he was then, in DPP v JC [2015] IESC 31. That decision also incorporates illegally obtained evidence.

8. Crucially, however, O’Malley J identified a further category where a “power is exercised without full compliance with the statutory safeguards for the defendant’s fair trial rights.”

O’Malley J opines (paragraph 90 of the judgment) that in such instances there should be an analysis of “the actual effect of the procedural error, or flaw in the documentary proof, on the fair trial rights of the defendant. If a breach of the statutory procedure is established, but it has no consequences in that no unfairness, prejudice or detriment can be pointed to, then the normal standards applicable to criminal trials would indicate that the evidence is admissible.”

9. The purported procedural error in the instant case falls squarely within this category of flaws in the implementation of statutory procedures. Avadenei mandates an analysis of the actual effect of the error on the fair trial rights of the accused. The testimony of the garda is this case is that the doctor processed the specimens, sealed bottles and the plastic containers, completed the section 15 certificate, and then handed the two sealed containers to the garda. The certificate indicates that the doctor processed the specimens, sealed the bottles and plastic containers, handed the sealed containers to the garda, and then completed the certificate. Either way the containers were sealed at the time the doctor furnished them to the garda. The containers were therefore sealed at the time that the accused was offered the choice of retaining one. Whether he retained one or not is irrelevant. The certificate was also completed. In reality each and every ingredient of section 15 was complied with and the most that has been established is a momentary temporal overlap in the particular sequence specified in the legislation. In those circumstances the conflict in the evidence between the testimony of the garda and the content of the section 15 certificate is insignificant.

10. Without determining that there was a procedural error, but assuming for the sake of the argument there was, this court is satisfied that such error has no consequences in that no unfairness, prejudice or detriment arises. That being the case the evidence that flows from the section 15 procedure is admissible.

11. The second ground upon which a direction is sought relates to whether or not an accused must be informed of the potential consequences of providing a blood specimen rather than a urine sample. If blood is provided then the accused may be charged with the offence pursuant to section 4(1A). If urine is provided then he cannot be charged with that offence. Whether blood or urine is provided there are a number of different offences that may be charged and they all give rise to similar penalties.

12. The requirement to provide a specimen of blood, or urine, or breath arises from a process that begins with driving or attempting to drive in certain specified circumstances. The offences that may be charged arising from the provision of one or more of the various specimens that may be lawfully demanded are numerous and varied. There are a myriad of potential outcomes depending on whether the specimen is blood, urine, or breath and whether the substance detected therein is drugs, alcohol or both. The potential to measure the actual concentration as opposed to the mere presence of the impugned substance gives rise to further combinations. We know from case law that there are different tolerances permitted and deductions made in calculating the concentration to be relied upon by the prosecution depending on the nature of the sample. There is no requirement to set out such deductions to an accused so that s/he might potentially increase their chances of providing a reading below the legal limit or at a lesser point along the spectrum of concentration that might give rise to a lesser period of disqualification. To do so would lead to intolerable confusion and uncertainty. Of course no intoxicant at all may be found in the provided specimen. The reality is it is not possible to predict what will occur following on from the provision of any sample. It is therefore not possible to predict with any certainty what charges, if any, will be preferred.

The legal requirement is to provide a specimen from which the presence or concentration of alcohol or drugs may be determined. The garda must warn an accused that noncompliance is a criminal offence. The evidence before this court is that the requirement was made in a lawful manner. The accused was informed that non-compliance is a criminal offence. This accords with the current state of the case law on this issue. The penalties were also set out to the accused.

13. In the opinion of this court it would be unnecessarily onerous to expect every garda to explain the various potential eventualities to each person from whom a specimen is required. This is so even if only certain charges could be preferred depending on the type of sample the person provides. Once the requirement is made to provide one or other of the specimens and the accused is informed that it is an offence to fail or refuse to comply then the terms of the legislation and the well-established case law are met. Setting out the penalties has become common place but is unnecessary.

14. For the reasons stated the application is therefore refused on both grounds.