High Court allows appeal against dismissal of charge where detention for breath test was lawful under the 20-minute rule.

Neutral Citation Number: [2005] IEHC 371

THE HIGH COURT

Record No. 2005 560 S.S.

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857 AS EXTENDED BY SECTION 51 OF THE COURTS

(SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

(AT THE SUIT OF GARDA EUGENE MULQUEEN)

PROSECUTOR/APPLICANT

AND

PAUL O’CONNOR

DEFENDANT/RESPONDENT

Judgment of Quirke J. delivered on the 16th day of November, 2005

1. This is a case stated by Judge James Paul McDonnell, a judge of the District Court, pursuant to s. 2 of the Summary Jurisdiction

Act, 1857, as extended by s. 51 of the Courts (Supplemental Provisions) Act, 1961. It has been made on the application of the

applicant who is dissatisfied with the determination of the learned District Judge as being erroneous in point of law. The case stated

seeks the opinion of the High Court as to whether the District Judge was correct in law in dismissing a charge against the respondent

alleging the commission of an offence contrary to the provisions of s. 49 of the Road Traffic Act, 1961. The charge was dismissed on

the grounds that the applicant had failed to prove that the respondent’s detention by the applicant was lawful during the

investigation of the offence alleged.

RELEVANT FACTS

2. At a sitting of Tallaght District Court on 24th April, 2003, the respondent appeared before the learned District Judge charged with

the commission of an offence pursuant to s.49(4)(6)(a) of the Road Traffic Act, 1961 as inserted by s. 10 of the Road Traffic Act,

1994.

3. The offence alleged was that on 15th June, 2002, at Main Street, Rathfarnham in Dublin, the respondent had driven a mechanically

propelled vehicle whilst there was present in his body a quantity of alcohol such that within three hours after so driving, the

concentration of alcohol in his breath exceeded a concentration of 35 microgrammes of alcohol per 100 millilitres of breath. The

respondent denied committing the offence.

4. Garda Eugene Mulqueen, testifying on behalf of the applicant, in evidence, said that he had brought the respondent to Terenure

Garda Station at 1.20 a.m. on 15th June, 2002, having observed him driving ten minutes earlier and formed the opinion that he had

consumed an intoxicant.

5. He introduced the respondent to Garda Shay Leonard.

6. In evidence Garda Leonard stated that he brought the respondent to the “doctor’s room” within Terenure Garda Station and

introduced himself as the operator of an Intoximeter E.C./I.R. apparatus.

7. He stated that he observed the respondent for a period of 20 minutes during which the respondent neither ate nor drank nor

smoked any substance.

8. It is acknowledged that the provisions of s. 13(1)(1a) and s. 17 of the Road Traffic Act, 1994, were properly and lawfully applied

by Garda Leonard and that the respondent provided two specimens of his breath.

9. The intoxilyzer which records the concentration of alcohol present in human breath, printed statements pursuant to s. 17 of the

Act of 1994 which indicated that there was a concentration of 82 microgrammes of alcohol per 100 millilitres within the breath sample.

10. In cross-examination Garda Leonard stated that although he had been trained in the use of the intoxilyzer he was not an expert

on the machine. The case stated records in relation to Garda Leonard that:-

“…He stated that the period of 20 minutes was necessary to ascertain the identity of the prisoner, and to search him

and to observe him. He stated that it was a coincidence that it was a 20 minute period. He said that he knew about the

20 minute rule. He said he was certain that the accused did not hiccup while under observation”.

11. Mr. David Reynolds who is the principal analyst and deputy director of the Medical Bureau of Road Safety testified as to his

qualifications and experience stating that he recommends that operators of intoxilyzers should allow a 20 minute observation period

before taking breath specimens. The case stated records that Mr. Reynolds stated that:-

“This is a recommendation which is made in accordance with best practice to ensure that nothing could alter breath

alcohol concentration…”

12. and that:-

“Eminent experts in the field of evidential breath testing recommend a period of at least 15 to 20 minutes”

13. and that:-

“…The manufacturers of the Intoximeter E.C./I.R. apparatus have no view on the 20 minute rule. In the view of the

manufacturers, the existence of mouth alcohol in the subject is a matter to be dealt with by each national or local

jurisdiction.”

14. The case stated records that when cross examined Mr. Reynolds stated that the police force within the United Kingdom use the

Intoximeter E.C./I.R. apparatus but do not require a 20 minute observation period:-

“…(they)…address the risk of mouth alcohol contamination by a series of questions put by the police constable to the

subject…”.

15. The case stated further records that:-

“…Mr. Reynolds explained that when he spoke of best international practice he was referring to the best international

academic practice of the 20 minute rule. When pressed to be more explicit on the dimensions of best international

practice he stated that there are some states in the United States of America which follow the 20 minute requirement,

but he could not identify those states and he could not say whether any European State applies the requirement for 20

minute observation of the nil by mouth.”

16. Having heard oral submissions, delivered a preliminary written judgment, heard further oral submissions and received written

submissions from the parties, the learned District Judge delivered a final ruling on 5th February, 2004, in which he described the

procedure permitted pursuant to the provisions of s. 13(1)(1a) and s. 17 of the Act of 1994 and continued:-

“The Medical Bureau of Road Safety have decided that the best way to ensure the absence of mouth alcohol

contamination, at the time of giving breath samples, is to ensure nil by mouth for a period of 20 minutes close

observation of the prisoner.

This observation for 20 minutes can result in a prolongation of the prisoner’s detention for upwards of 20 minutes…and

did so in the instant case.

What appears to have been unknown to the Supreme Court in both Finn and McNiece is the fact that it (is) possible (as

we established in this case upon the evidence of Mr. Reynolds) to adopt an alternative mode of establishing nil by mouth

which does not require the prolongation of the prisoner’s detention by upwards of some 20 minutes.

In my view the prosecution has failed to objectively justify the prolongation of Mr. O’Connor’s detention in accordance

with the required…I dismiss the case.”

THE ISSUE FOR DETERMINATION

17. In this case the ground relied upon by the learned District Judge for dismissing the charge against the respondent was that the

“prosecution has failed to objectively justify the prolongation of Mr. O’Connor’s detention”.

18. In short he has concluded that the respondent was in unlawful detention at the time when he was required to provide specimens

of his breath.

19. The reason given by the learned District Judge for his conclusion was that an alternative method of eliminating the risk of mouth

alcohol contamination was available to the prosecution which would not necessarily require the prolongation of a prisoner’s detention

by “…upwards of some 20 minutes…”.

20. The only alternative method identified within the case stated was the method referred to by Mr. Reynolds in cross-examination

which was employed by the police force of the United Kingdom. This method apparently involves either;

(a) a series of questions put by a police constable to the subject or;

(b) in some circumstances and dependent upon the outcome of the breath test, a further option to provide a blood or

urine specimen to a medical doctor.

21. No evidence was adduced indicating whether the relevant United Kingdom legislative provisions allow for the possible refusal by a

suspected person to answer prescribed questions or whether they require or authorise the further detention of an accused person in

order to accommodate the additional optional breath testing process. No expert or other evidence of English law or of the relevant

legislative provisions and the statutory regime in the United Kingdom for the prosecution of similar offences was adduced in evidence.

DECISION

22. In Director of Public Prosecutions v. Finn [2003] 1 I.R. 372, the Supreme Court (Murray J.) considered the detention of an

accused person who was arrested under the provisions of s. 49 of the Road Traffic Act, 1961 conveyed to a garda station and

detained in an interview room for a period of 20 minutes. A period of observation had been prescribed pursuant to guidelines given to

An Garda Síochána. These guidelines simply indicated that an arrested person should be observed for a period of 20 minutes prior to

requiring a sample of breath to be given. The reason for this was apparently to ensure that the suspected person did not eat any

food.

23. It was held that the period of detention was unlawful because a person arrested in such circumstances is entitled to have the

appropriate procedure initiated as soon as reasonably possible. The arresting Garda was held to be under a duty to take appropriate

steps to ensure compliance with the statutory requirement that a defendant provide specimens of his breath with reasonable

expedition and without unreasonable delay.

24. Delivering his judgment Murray J.(as he then was), observed, (at p. 380) that:-

“In my view, if the procedure according to which an arrested person must be observed for 20 minutes is capable of

being justified, it must be justified by a competent witness who can give appropriate evidence. I do not wish to

speculate unduly as to what that evidence might or might not be in this case but it may involve establishing that, for

example, such a procedure is necessary in order to comply with manufacturers instructions concerning the use of such

an apparatus or accords with a generally recognised and established practice.”

25. In Director of Public Prosecutions v. McNiece [2003] 2 I.R. 614 the Supreme Court (Murray J.) clarified and elaborated upon the

ratio decidenda in Finn in the following terms (at p. 622):-

“It was the absence of any evidence capable of proving objective justification for the observation period of 20 minutes

which led to my conclusion on the facts of that case, that the prosecution had not discharged the onus on it of

justifying the detention in law and that therefore it must be considered to have been unlawful…it is clear from my

judgment and that of Hardiman J. in Director of Public Prosecutions v. Finn [2003] 1 I.R. 372 that what was absent in

that case was any evidence which could be considered capable of objectively justifying a practice of observing the

arrested person for a period of 20 minutes before requiring him or her to provide specimens of breath and thus

prolonging the period of detention”.

26. The principles identified by the Supreme Court in Finn and McNiece should not be construed as imposing upon prosecuting

authorities any greater onus than has historically been borne by the State in the prosecution of road traffic and other offences. In

Finn and McNiece the Supreme Court adopted and reaffirmed the principles set out in Dunne v. Clinton [1930] I.R. 366 and the People

v. Walsh [1980] I.R. 294 which govern the duty of arresting Gardaí.

27. In Director of Public Prosecutions v. Finn (supra) the Supreme Court (Hardiman J.) observed (at p. 384) that:

“If a person arrested in the ordinary way must be brought before a court or peace commissioner as soon as reasonably

possible, it seems to me to follow that a person arrested in circumstances which permits some other procedure to be

activated in respect of him is entitled to have this procedure initiated as soon as reasonably possible.”

28. He explained (at p. 386) that:

“This is not a case of delay simpliciter. It is a case in which a Garda having custody of the defendant deliberately

decided to wait for a particular fixed period before making the statutory requirement which was the purpose of the

detention. He did this, he said, on the basis of ‘guidelines’ given to An Garda Siochána. It is clear from the evidence of

the Garda as set out in the case stated that he himself made a decision simply to sit in a room with the defendant,

doing or saying nothing, for 20 minutes. He did this because he had been told or advised to do so in guidelines.”

29. In the instant case Garda Leonard stated in evidence that it was necessary to detain the respondent in order to identify him “…

and to search him and to observe him”. He stated in evidence that “…he knew about the 20 minute rule…” but stated that “…it was

a coincidence that it was a 20 minute period…”.

30. Mr. Reynolds adduced expert testimony explaining the existence of and reason for the “20 minute rule”. He said that its

application accords with “best international practice…” in order to eliminate the risk of mouth alcohol contamination.

31. Although he was challenged in cross-examination as to the extent of that practice it has not been suggested in the case stated

that any expert or other evidence was adduced in the proceedings which could be said to have displaced the evidence of Mr

Reynolds.

32. In his ruling the learned District Judge relied upon the alternative method employed by the police force in the United Kingdom in

support of his finding of unlawful detention.

33. This appears to have comprised a series of questions put by a police constable to the accused person. The learned District Judge

found that this comprised an alternative method of eliminating mouth alcohol contamination. He said that it did not require the

prolongation of detention by “upwards of 20 minutes”.

34. In the absence of evidence of the statutory regime for the prosecution of this type of offence within the United Kingdom it is

difficult to reach a definitive conclusion as to whether methods adopted by the police force in the United Kingdom for the purpose of

satisfying evidential requirements in that jurisdiction necessarily have relevance to similar prosecutions within this jurisdiction.

35. However the existence of an alternative method did not impose upon the investigating Garda an obligation to adopt that method,

even if it were later found to be more expeditious than the method employed.

36. The obligation upon Garda Leonard was to commence the statutory breath sampling process as soon as was reasonably possible

and practicable in the circumstances. On the evidence and having regard to his familiarity with the “twenty minute rule” it is difficult

to see how he could have commenced the process earlier than he did. He would certainly have been most unwise to have adopted a

practice used by the police force of another jurisdiction in the circumstances of this case.

37. The reason for the respondent’s detention was and remains clear and unambiguous. The purpose of the “20 minute rule” was

clearly explained in evidence by Mr. Reynolds. It is intended to eliminate the risk of mouth alcohol contamination during the provision

of breath specimens. That evidence was and remains unchallenged. Garda Leonard stated in evidence that he was familiar with the

rule. If he was familiar with the rule, then it follows that he was aware of its purpose. He was not challenged on the extent of his

familiarity.

38. The respondent was, therefore, detained in order to eliminate the risk of mouth alcohol contamination whilst he was undergoing a

process which was authorised by statute. There was no sinister aspect to his detention. His right to liberty was not fragrantly or

negligently infringed. No suggestion of that kind has been made, and indeed, on the evidence, no such suggestion could have been

sustained.

39. If an alternative and perhaps speedier method of eliminating the risk of mouth alcohol contamination was available to Garda

Leonard, (and I am not sure that it was), then his failure to adopt that method did not necessarily render the respondent’s detention

unlawful. His obligation was to initiate the statutory procedure for breath testing as soon as was reasonably possible.

40. On the evidence it can hardly be suggested that Garda Leonard did not act bona fides or that he showed careless disregard for

the respondent’s rights. No such suggestion has been made or could be sustained on the evidence. As I have indicated earlier it is

difficult to see how he could reasonably have commenced the statutory breath testing process earlier than he did. It was therefore

not open to the learned District Judge to find that the respondent’s detention was unlawful in the circumstances.

41. It follows from what I have just found that the questions posed by the learned District Judge should be answered as follows;

i) No.

ii) No.