Court dismisses accused's challenge to single offence charge under Road Traffic Act 2010 s.5(4).

AN CHÚIRT DÚICHE

THE DISTRICT COURT

District Court Area of Portlaoise District Number 15

Neutral Citation: [2024] IEDC 1

Record No: 2023/1104

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS

(AT THE SUIT OF GARDA MARTIN FALLON)

PROSECUTOR

-AND-

CHRISTIAN SEBASTIAN PLENUS

ACCUSED

Portlaoise District Court

Judgment delivered by Judge Andrew Cody on the 22nd of February 2024.

The Charge

1. The accused is charged with a single offence;-

2. On the 26/06/2023 at Ballydavis Portlaoise, Laois, a public place in the said District Court Area of Portlaoise were in charge of a mechanically propelled vehicle registration number 05WH4582 with the intent to attempt to drive the said vehicle (but not driving or attempting to drive it),while there was present in your body a quantity of alcohol such that, within 3 hours after so being in charge, the concentration of alcohol in your breath did exceed a concentration of 22 microgrammes of alcohol per 100 millilitres of breath to wit 94 microgrammes of alcohol per 100 millilitres of breath. Contrary to Section 5 (4)(a) and (5) of the Road Traffic Act 2010.

The evidence

3. The evidence in this case to date does not appear to be in dispute insofar as it relates to the direction sought. Garda Martin Fallon gave evidence to say that on Monday the 26th of June 2023 at 00: 50, he received a notification of a suspected intoxicated driving at Ballydavis, Portlaoise. On arrival, they located an Audi A3, registration number 05WH4582 stopped at the side of the road, and as he approached, he could see that the headlights were on, the engine was warm to the touch, and the keys were in the ignition. In cross examination he gave evidence that the accused was the sole occupant of the car but his position in the car was not noted, and he couldn’t recall, at this stage, where the accused was seated. Garda Fallon spoke to the accused who produced his driver's licence. While speaking to the accused, there was a strong smell of alcohol from his breath, his speech was slurred and his eyes were bloodshot, and he then cautioned him. The accused said he was driving home from work in Tesco in Maynooth. At 00: 54 Garda Fallon formed the opinion that the accused intended to drive the mechanically propelled vehicle in a public place and that he also formed the opinion that he was under the influence of an intoxicant to such an extent as having improper control of a mechanically propelled vehicle in a public place, and at 00: 55 the accused was arrested. Garda Fallon explained this to the accused in ordinary language and the accused said that he understood. Garda Fallon said that there were empty bottles and empty beer cans in the back seat of the car. The accused was arrested, brought to Portlaoise Garda Station and processed under the provisions of the Road Traffic Acts and a Section 13 certificate was tendered in evidence , which showed that the accused had a reading of 94 microgrammes of alcohol per 100 millilitres of breath. The accused was charged at 2.55 am and made no reply to the charge.

The Law

4. Section 5.(4) of The Road Traffic Act 2010. A person commits an offence if, when in charge of a mechanically propelled vehicle in a public place with intent to drive or attempt to drive the vehicle (but not driving or attempting to drive it), there is present in his or her body a quantity of alcohol such that, within 3 hours after so being in charge, the concentration of alcohol in his or her breath will exceed a concentration of—

(a) 22 microgrammes of alcohol per 100 millilitres of breath, or

(b) in case the person is a specified person, 9 microgrammes of alcohol per

100 millilitres of breath.

(8) In a prosecution for an offence under this section it shall be presumed that the defendant intended to drive or attempt to drive the vehicle concerned until he or she shows the contrary.

Accused Submissions

5. At the conclusion of the case Mr David Staunton BL submitted that the charge as particularised does not arise on the facts. He reserved his position regarding the location of the accused in the car.

6. Mr Staunton submits that under Section 5(4) the prosecution faces as he calls it a “fork in the road” and that the prosecution must prove that the accused either “intended to drive” or “intended to attempt to drive”.

7. Mr Staunton submits that the accused is charged with being in charge with ”intent to attempt to drive” whereas the opinion of the Gardai was that the accused had “an intention to drive”.

8. Mr Staunton submitted that it had been confirmed by the Supreme Court that driving and attempting to drive are mutually exclusive acts. In the Supreme Court ruling in State (McGroddy) v Carr, 1975 IR qt 291, Griffin J. said “In my opinion, s.49 created not four but two offences, namely, the offence (1) of driving and (2) of attempting to drive a mechanically-propelled vehicle whilst under the influence of intoxicating liquor or a drug.” That distinction was reiterated by the Supreme Court a few years later in DPP v Gilmore 1981 ILRM

102 where Henchy J. remarked:

9. “ There are, however, three offences (or more correctly, six offences, when attempts are counted as separate offences) that may be committed under the section: (1) driving or attempting to drive when the accused is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle; (2) driving or attempting to drive when the concentration of alcohol in the accused’s blood exceeds the permitted level; and (3) driving or attempting to drive when the concentration of alcohol in the accused’s urine exceeds the permitted level.

10. Mr Staunton submitted that in light of McGroddy and Gilmore, together with the clear wording of the legislation, s.5(4) should be properly understood as creating two discrete offences with a common actus reus but with separate and distinct mens rea.

Discussion

11. The old Section 49 of the Road Traffic Act 1961 as amended provided was as follows;-

12. Section 49(1) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle.

13. However, Section 5 (and 8) Road Traffic Act 2010 is entirely different in format and provides that a person commits an offence.. when in charge of a … vehicle .. with intent to drive or attempt to drive .. there is present in his or her body a quantity of alcohol…(and) ….it shall be presumed that the defendant intended to drive or attempt to drive the vehicle concerned until he or she shows the contrary.

14. It is clear to me that the cases of McGroddy and Gilmore are distinguishable from this case as the provisions of the old Sections 49 of the Road Traffic Act 1961 as amended are substantially different to the provisions of Section 4 and

5 of the Road Traffic Act 2010.

15. McGroddy decided that Section 49 created two separate offences in terms of driving or attempting to drive and by extension four when taking into account the alternatives of drugs and alcohol.

16. When applying this interpretation the Supreme Court were considering prosecutions where the accused had driven or had attempted to drive and the prosecution could choose, depending on the particular facts of the case, to prosecute a person for driving or attempting to drive.

17. The 2010 Act was an entirely new regime and the offences “driving” under Section 4 and “in charge” under section 5 are two separate offences, are entirely new and worded very differently. The charge under Section 5 involves a possible future intention to drive or attempt to drive, and the wording of Section 5(4) makes it clear that in terms of past events capable of being proved by way of evidence the only possible prosecution available is the accused being in charge of a vehicle. It is presumed in such a prosecution the future intentions of the accused were to intend to drive or to attempt to drive until the contrary is shown.

18. The offence under Section 5 introduces the presumption that the accused intended to drive or depending on the level of his intoxication and perhaps the state of his vehicle or other factors, he may have simply intended to attempt to drive. It would be wholly unreasonable and an absurd interpretation of the section if it required the prosecution to predict the future, let alone prove beyond reasonable doubt in every case what the likely success would be of the accused intention to drive. This would depend on many factors, including, the level of intoxication at the time of arrest, the time it took for the accused to be processed, and either the accused or his vehicle could be incapacitated to such an extent that he may have been unable to drive it.

19. To intend is to have an intention to pursue a particular purpose, or purposes in the future and the singular presumption in Section 5(8) is an intention to drive or attempt to drive, depending on circumstances.

20. Section 5(4) commences with “(4) A person commits an offence“ . This makes clear that the offence under Section 5(4) is a single offence and the section did not create “offences”.

21. Subsection 8 provides that in a prosecution for an offence under this section it shall be presumed that the defendant intended to drive or attempt to drive the vehicle concerned until he or she shows the contrary.

22. The use of the words “an offence” twice clearly indicates the Oireachtas intended to section to create a single offence.

23. A key principle of statutory interpretation is that nothing should be added to or taken from a statute unless there are adequate grounds to justify an inference that the legislator intended something which it omitted to express. In this regard the Court is referred to H v. H [1978] IR 138, where Parke J. said that words may not be interpolated into a statute unless it is absolutely necessary to do so in order to render it intelligible or to prevent it from having an absurd or wholly unreasonable meaning or effect.

24. To accept the argument of the accused it would be necessary to rewrite Sections 5(4) and 8 to say it created offences instead of an offence.

Decision

25. I am satisfied that the purpose of Section 5(4) is also to address all manifestations of the single intention in question namely persons being intoxicated in charge of a motor vehicle, and who either intended to drive or intended to attempt to drive but did not in fact drive or attempt to drive.

26. The Court is of the view that the relevant sub-section is not ambiguous, and Section 5(4) creates a single offence of being in charge of a vehicle in a public place while intoxicated and that it is presumed that the accused intended to drive or attempt to drive the vehicle concerned until he or she shows the contrary.

27. The accused is charged with being

“ in charge of a mechanically propelled vehicle registration number 05WH4582 with the intent to attempt to drive the said vehicle.

28. The legislation provides that the offence is being

“in charge of a mechanically propelled vehicle in a public place with intent to drive or attempt to drive the vehicle.

29. The Court is entitled under Subsection 8 to presume that the accused “intended to drive or attempt to drive the vehicle”.

30. While there is a very minor and inconsequential difference between the format to the charge and the offence created by Section 5(4) I am satisfied that it is insignificant and causes no prejudice to the accused.

31. The Court therefore does not accept the submission for the accused and is satisfied that Section 5(4) creates a single offence.

32. In the circumstances I am satisfied that the accused has a case to answer.