Court allows DPP appeal, holding that intention for drug driving sample can be proved by inference from surrounding facts.

THE COURT OF APPEAL

APPROVED

NO REDACTION NEEDED

Neutral Citation No: [2025] IECA 155

Court of Appeal Record No. 2024/166

High Court Record No: 2023/84 JR

McCarthy J. Burns J. Hyland J. BETWEEN:

CONOR MCGUINNESS

Applicant/ Respondent

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent/ Appellant

Judgment of Ms. Justice Hyland delivered on the 28th day of July, 2025 Summary

1. In 2022, an application for a directed acquittal in a trial for drug driving was made by the solicitor for Mr. McGuinness (“the accused”) on the basis that the Director of Public Prosecutions (“the DPP”) had failed to prove the requisite intention of the Garda when requiring the accused to provide a blood sample pursuant to s.13B(1) of the Road Traffic Act 2010 as amended (the “2010 Act”) to ascertain whether he was over the statutory limit for drug driving. S.13B(1) requires, inter alia, the Garda to form an opinion that the person has committed an offence under s. 4 (1A) i.e. driving or attempting to drive a vehicle with a concentration of a specified drug in their blood at or over an identified level. The Circuit judge on appeal (the “Circuit judge”) refused the application and proceeded to find the accused guilty. Judicial review was sought of his decision.

2. Somewhat unusually, the core issue that I must decide in this appeal is the legal basis on which the Circuit judge refused the application. The accused argues that the trial judge i.e. the judge who granted judicial review in the High Court and whose decision (described below) is under appeal, was correct in concluding that the Circuit judge had refused the application largely, if not exclusively, on the basis that the Garda, in referring to sections 4(1),(2),(3) and (4) of the 2010 Act when arresting the accused, should be treated as also referring to s.4(1A).

3. The DPP, on the other hand, argues that the Circuit judge refused the application on the basis that the prosecution was entitled, and did, prove the requisite intention by inference from surrounding facts. The DPP argues that the trial judge was wrong in concluding that this was an impermissible basis for refusal given the nature of the opinion required to be formed by s.13B(1).

4. The DPP’s appeal is narrow in its scope. There is no appeal against the trial judge’s

decision that the Circuit judge erred in ruling that the reference by the Garda at the time of the arrest to sections 4(1) to (4) implicitly included s.4(1A). In other words, if I reject the DPP’s argument that the Circuit judge found the intention had been proved by inference from surrounding facts, the appeal is at an end.

5. In those circumstances, it is necessary to decide whether the trial judge was correct in deciding that the essential basis of the Circuit judge’s decision to reject the application for a direction was that the reference to sections 4(1) to (4) should be treated as including s.4(1A). Having considered the transcript of the Circuit court hearing and having had the benefit of helpful submissions from both counsel on same, for the reasons explained below, I am satisfied that the Circuit judge rejected the application for a direction on that basis, and on that basis alone. The trial judge was correct in so concluding, and in granting an order of certiorari of the Circuit judge’s decision on the basis that it was erroneous in law.

6. However, the trial judge did admit of the possibility that the Circuit judge may also have rejected the application for a direction on the basis that the requisite intent under s.13B(1) had been proved by inference and concluded that, if this was the case, he was not entitled to so do. I do not agree that the Circuit judge rejected the application on this basis. Nonetheless, because of the general importance of the question as to how the requisite intent under s.13B(1) may be proven, I have explained (albeit on an obiter basis) why I consider evidence of the requisite opinion under s.13B(1) could, in another case, be proved by inference where necessary.

Factual Background

7. On 7 May 2021, at approximately 13:55, the accused was driving a vehicle when he was stopped by Garda Niall McIntyre at a static checkpoint. Garda McIntyre noticed the accused’s tax and insurance discs were out of date, and while speaking to the accused, Garda McIntyre noticed there was a strong smell of cannabis coming from the accused and the inside of the vehicle. When asked about the smell of cannabis, the accused said that his girlfriend had smoked cannabis in his car earlier that day. Garda McIntyre performed a search of the car, and found a plastic bag of what the accused admitted was cannabis. An oral swab taken by Garda McIntyre from the accused under s.9(2A) of the 2010 Act indicated the positive presence of cannabis.

8. Garda McIntyre informed the accused he was arresting him under S.4(8) of the 2010 Act, for an offence contrary to s.4(1),(2),(3), or (4) of the 2010 Act. Section 4(8) permits a garda to arrest without warrant a person who in the member’s opinion is committing or has committed an offence under s.4. The accused was then conveyed to the Garda station, where Garda McIntyre required the accused to provide a blood sample under s.13B(1) of the 2010 Act, which returned positive for the presence of cannabis at a level in excess of that prohibited by the 2010 Act. The accused was convicted in the District Court for an offence of driving with an excess of cannabis in his blood contrary to s.4(1)(A) of the Road Traffic Act 2010 and was issued with a €200 fine and was disqualified from driving for a period of 12 months.

History of the proceedings

9. The accused appealed his District Court conviction to the Circuit Court. The hearing of the appeal took place in Trim Circuit Court on 9 November 2022. The prosecuting Garda presented his evidence, which was not challenged. The solicitor for the accused sought a direction from the court to dismiss the case on the basis that the conditions underlying a valid requirement being made pursuant to s.13B(1) were not established in evidence. The Circuit judge refused the application for a direction on the basis that the prosecuting Garda had formed an opinion that an offence had been committed contrary to s.4(1), not specifically s.4(1A), but that this was sufficient to comply with the provisions of s.13B(1). He affirmed the District Court conviction.

10. The accused brought judicial review proceedings challenging the conviction. The trial judge (Bolger J.) granted an Order of Certiorari [2024] IEHC 317 quashing the order of the Circuit judge. That decision is the subject of this appeal.

Statutory Framework

11. Section 4 of the Road Traffic Act 2010, as amended by the Road Traffic Act 2016, provides:

(1) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he or she is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle. (1A) Subject to subsection (1B), a person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his or her body a quantity of a drug specified in column (2) of the Schedule such that, within 3 hours after so driving or attempting to drive, the concentration of that drug in his or her blood is equal to or greater than the concentration specified in column (3) at the same reference number. ….

(2) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his or her body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his or her blood will exceed a concentration of—

(a) 50 milligrammes of alcohol per 100 millilitres of blood, or

(b) in case the person is a specified person, 20 milligrammes of alcohol per 100 millilitres of blood.

(3) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his or her body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his or her urine will exceed a concentration of—

(c) 67 milligrammes of alcohol per 100 millilitres of urine, or

(d) in case the person is a specified person, 27 milligrammes of alcohol per 100 millilitres of urine.

(4) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his or her body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his or her breath will exceed a concentration of—

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

(f) in case the person is a specified person, 9 microgrammes of alcohol per 100 millilitres of breath.

…

(8) A member of the Garda Síochána may arrest without warrant a person who in the member’s opinion is committing or has committed an offence under this section.”

12. Section 9 provides in relevant part:

(1) This section applies to a person in charge of a mechanically propelled vehicle in a public place who, in the opinion of a member of the Garda Síochána—

(a) has consumed [an intoxicant],

(b) …

(2A) A member of the Garda Síochána shall, unless he or she is of opinion that the person should be arrested and subject to subsections (6) and (7), require a person to whom paragraph (a) or (d) of subsection (1) applies, and may require a person to whom paragraph (b) or (c) of that subsection applies

(c) to provide a specimen of oral fluid from his or her mouth, using an apparatus for indicating the presence of drugs in oral fluid, in the manner indicated by the member,

(d) to accompany him or her, or another member of the Garda Síochána, to a place (including a vehicle) at or in the vicinity of the public place concerned and there to provide a specimen of oral fluid from his or her mouth, using an apparatus for indicating the presence of drugs in oral fluid, in the manner indicated by him or her or that other member, or

(e) where the member does not have such an apparatus with him or her, to remain at that place in his or her presence or in the presence of another member of the Garda Síochána (for a period that does not exceed one hour) until such an apparatus becomes available to him or her and then to provide a specimen of oral fluid from his or her mouth, using an apparatus for indicating the presence of drugs in oral fluid, in the manner indicated by him or her or that other member.

13. Section 13B(1) provides:

(1) Where a person is arrested under section 4(8), 5(10), 9(4), 10(7) or 11(6) of this Act or section 52(3), 53(5), 106(3A) or 112(6) of the Principal Act and a member of the Garda Síochána, having carried out—

(a) a preliminary oral fluid test under section 9(2A) or 10(4),

(b) impairment tests under section 11, or

(c) an oral fluid test under section 13A,

is of the opinion that the person has committed an offence under section

4 consisting of a contravention of subsection (1A) of that section or an offence under section 5(1A) the member may, at a Garda Síochána station or hospital, require the person to permit a designated doctor or designated nurse to take from the person a specimen of his or her blood.

Basis for Refusal of the Direction by Circuit Judge

14. Counsel for the accused readily conceded that the formation of the necessary opinion under s.13B(1) could in principle be inferred from surrounding evidence, but pointed out that, in this case, the Circuit judge pronounced himself satisfied that the requisite opinion had been proved, not by inferences drawn from the facts of the case, but rather on the specific basis that Garda McIntyre, when arresting the accused under s.4(8), explicitly said in evidence that he had informed the accused that he was arresting him under s. 4(8) for an offence contrary to sections 4(1), (2), (3) or (4) of the 2010 Act.

15. The Circuit judge sought to clarify that submission, asking whether it was asserted that Garda McIntyre ought to have referred to s.4(1A), rather than s. 4(1), (2), (3) and (4). The solicitor for the accused confirmed that that was the case. The Circuit judge than asked the solicitor for the DPP whether it was his case that, where Garda McIntyre gave evidence of arresting under s. 4(8) for offences under s. 4(1), (2), (3) and (4), that included s. 4(1A). He confirmed that was his case. The Circuit judge characterised the question before him as being whether s.4(1) includes s.4(1A), making the following observation: - “I have evidence from the garda that he arrested under section 4(8) of the Act for offences under sections 4(1), (2), (3) and (4). And what you are asking me to do is to exclude (A) to exclude anything that might be tagged onto (1), (2),

(3) and (4) and Mr. Keane is saying to me ‘no that includes (A)’”.

16. The Circuit judge held that he was not going with the solicitor for the accused on that approach, and that the accused had a case to answer. The defence did not go into evidence and submissions were made in mitigation. The Circuit judge proceeded to find the accused guilty.

17. In the trial judge’s ruling, she held that at least part if not most of the basis for the

decision of the Circuit Judge was that s.4(1A) was somehow part of subsection 4(1) and went on to explain why a reference to s. 4(1) could not be treated as an implicit reference to s. 4(1A) for the purposes of the requisite opinion under s.13B(1). She pointed out that the new offence under s. 4(1A) was nothing to do with s. 4(1), apart from its location in the Act, observing that there was no question that s. 4(1) included s. 4(1A) or that s. 4(1A) could be tagged on to s. 4(1). She concluded that the Circuit judge erred in his conclusion that this was sufficient evidence of the formation of the opinion.

Grounds of Appeal

18. The grounds of appeal are as follows: The Superior Courts have repeatedly held that in the absence of an express evidence, an opinion can be inferred from the surrounding circumstances. The Superior Courts have also consistently held that, if the validity of an opinion has not been challenged, the evidence of the garda is sufficient. The evidence heard by the Circuit judge in this case clearly shoId the prosecuting garda had formed an opinion that the applicant was driving under the influence of drugs, as opposed to another intoxicant. The opinion formed by the prosecuting garda was not challenged. In those circumstances, the learned High Court judge erred in determining that the Circuit Court judge was not permitted to infer, or imply, the opinion formed by the prosecuting Garda.

19. It may be seen that, sensibly, those grounds do not include a challenge to the substantive finding of the trial judge that a reference to s. 4(1)(2)(3) and (4) could not be treated as encompassing a reference to s.4(1A). Instead, an entirely different tack was taken by the DPP to the effect that the solicitor for the DPP had urged the trial judge to infer that the requisite opinion was formed from other evidence given by Garda McIntyre, that the Circuit judge had done so, and that the trial judge had erred in finding otherwise. This case was not pleaded by the DPP in her Statement of Opposition. It was argued by counsel that the first paragraph of the Statement of Opposition contained that plea. I cannot accept that submission. Paragraph 1 is in the following terms: -

(1) “It is denied that the Circuit Court Judge erred in law or had insufficient regard to the evidence elicited over the course of the hearing. The Circuit Judge was keenly aware of the state of the evidence at the close of the State’s case. He engaged with the submissions made by both sides and applied the law to that evidence”.

20. That does not amount to a plea in the terms now made. Despite this lacuna in the pleadings, valiant attempts were made by counsel for the DPP to argue that, read correctly, the transcript demonstrated the Circuit judge had rejected the applicant’s argument on the basis that an inference could be drawn. In my view, that is an unsustainable argument having regard to the very clear terms of the transcript, showing the questions posed by the Circuit judge and the answers given by the solicitor for the DPP, which make it clear that his only argument was that s. 4(1A) could be treated as being incapsulated in Garda McIntyre’s reference to sections 4(1), (2), (3) and (4). For the reasons identified by the trial judge, this was an error of law by the Circuit Judge and the trial judge correctly quashed his decision. In the circumstances, the appeal of the DPP fails and the decision of the trial judge is upheld.

Proof of the formation of an opinion under s.13B(1) by inference

21. Despite the above conclusion, it is necessary to address the following observations of the trial judge at paragraphs 9 to 11 of her judgment (albeit on an obiter basis): “9. Section 13B renders it an offence for a person to refuse or fail to furnish the blood specimen required of them and is, therefore, a penal provision that must be strictly construed. The authorities relied on by the Director, where the courts have held that the interests of justice require common sense to be applied to evidence (DPP v. Ó Súilleabháin [1995] 2 ILRM 617; DPP v. Higgins [2017] IECA 55), cannot be applied to a provision that requires such strict construction. Those authorities relate to the validity of an arrest, whereas what is at issue here is the statutory requirement of a section that renders it an offence, punishable by a fine and/or imprisonment, to fail or refuse to provide a blood specimen required by the garda. The garda is permitted to exercise that significant poIr only where they are of the opinion that an offence under s. 4(1A) or s. 5(1A) has been committed. That imposes a more onerous standard of proof to establish evidence of the existence of an opinion, than the circumstances in which the law allows for the application of common sense to the evidence that may satisfy the statutory requirements of a lawful arrest. Section 13B cannot be satisfied by what the Director submitted was an opinion that the garda would have been entitled to form on the basis of the roadside test alone (set out at the respondent’s submissions at para. 34). Whether or not the garda could have formed the opinion on the evidence is not the issue. What matters is whether the Director has established compliance with s. 13B, i.e. that the garda “is of the opinion” that the person has committed an offence under s. 4(1A) or section 5(1A).

10. Section 13B is a mandatory provision which must be followed (similar to the statutory provision in McCarron v. Groarke (Unreported, High Court, Kelly J., 4 April 2000)). It cannot be satisfied by evidence that is claimed to have been established by implication, particularly where the evidence may be used to establish the committing of an offence.

11. I, therefore, find the Circuit Judge was not permitted, if indeed he did, to find by implication that the garda had given evidence of having been of the opinion that the applicant had committed an offence in relation to s. 4(1A). Insofar as the Circuit Judge determined that the garda’s evidence could not have excluded s. 4(1A), that this was an incorrect application of the legislation to the evidence and, therefore, an error of law.

22. I agree with the trial judge’s observation at the end of para. 9 to the effect that what matters is whether the DPP has established compliance with s.13B(1). Where I part company from her is in respect of her observations at para. 10 to the effect that s. 13B(1) is a mandatory provision which cannot be satisfied by evidence established by implication. This leads onto her conclusion at para. 11 where she finds the Circuit Judge was not permitted to find the necessary opinion by implication, if that was what he did.

23. I do not consider this to be a correct interpretation of the law. Section 13B(1) establishes three pre-conditions that must be met before requiring a person to permit that a blood sample be taken: first, the person must have been arrested under a specific section (here the arrest was made under s. 4(8)); second, one of three alternative fluid tests must have been carried out; and third, the Garda must be of the opinion that the person has committed an offence under s. 4(1A) or s. 5(1A). The establishment of the opinion of the member of An Garda Síochana is a fact to be proved in the same way as any other fact in the course of a criminal trial. It may be proved by direct evidence or inferentially. This is not a novel proposition. As the DPP observes in her submissions, it is established in cases such as Ó Súilleabháin, Higgins and DPP v O'Connor [1985] I.L.R.M. 333.

24. There is no difference in principle between the evidence required to establish an opinion necessary for the validity of an arrest or otherwise and the establishment of any fact – the existence of an opinion is merely a fact. Thus, as with any other fact, it can be proved by drawing conclusions of secondary fact by inference from primary facts or indeed a series of facts, whether secondary or primary, giving rise to a conclusion based on circumstantial evidence. Insofar as it may be suggested accordingly that the fact that a given opinion or opinions might be held cannot be proved by inference, that

conclusion is wrong in law. Simply put, the ordinary rules of evidence apply. Indeed, in the present case, counsel for the accused had no difficulty with that proposition in principle.

25. It should be remembered that s.4(1A) simply requires the forming of an opinion, not a certainty on the part of the Garda: indeed, the very structure of the relevant statutory provisions makes it clear that the Garda can never do more than form an opinion, because the information required to establish a breach of s.4(1A), i.e. the necessary concentration levels in the blood, can only ultimately be proved by results of the blood specimen.

26. The formation of an opinion for the purposes of arresting a person under s. 4(8) is a distinct and different step to the formation of an opinion under s. 13B(1), although both opinions may be held conterminously. In other words, the mere fact that a Garda has formed an opinion under s. 4(8) i.e. that the person is or has committed an offence under s.4 is not alone sufficient to prove that the necessary opinion under s.13B(1) has been formed, since the opinion under s.13B(1) relates exclusively to the commission of an offence under s.4(1A). However, the facts that lead the Garda to form the opinion under s.4(8) may be sufficient to draw an inference that the Garda had formed an opinion that the person had breached s. 4(1A). Alternatively, the Garda might have informed the person when arresting them that he or she was of the opinion that the person had committed an offence under s.4(1A). Such a statement is sufficient to establish both of the requisite opinions.

Conclusion

27. For the reasons identified above, I reject the appeal seeking to set aside the decision of the trial judge granting an Order of Certiorari of the Order of the Circuit Court Judge dismissing the appeal of the accused at Trim Circuit Court on 9 November 2022 concerning an offence contrary to s.4(1A) of the Road Traffic Act 2010 as inserted by s.8(a) of the Road Traffic Act 2016 as set out in Meath District Court appeal 2022/3161.

28. McCarthy J. and Burns J. have read this judgment in advance of its delivery and have indicated that they agree with it and with the orders proposed.