Court holds refusal to comply with breath test requirement is offence only if alcohol concentration cannot be determined.

THE SUPREME COURT

213/04

Murray CJ

McCracken J

Kearns J

IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT 1947

AND

IN THE MATTER OF SECTION 13 OF THE ROAD TRAFFIC ACT 1994

Between:

The Director of Public Prosecutions

Complainant

AND

Brigid Moorehouse

Defendant

Judgment of Mr Justice McCracken delivered the 28th day of July 2005

1. I have had the opportunity of reading in draft the judgments of my colleagues Murray CJ and Kearns J in this matter. I agree with

the reasoning and judgment of Kearns J and I would add a few remarks of my own.

2. The relevant portions of s.13(1) of the Road Traffic Act 1994 reads as follows:-

“Where a person is arrested under section 49(8) … of the Principal Act … and a member of the Garda Síochána is of opinion

that the person has consumed an intoxicant, a member of the Garda Síochána may, at a Garda Síochána station, at his

discretion, do either or both of the following:-

(a) require the person to provide, by exhaling into an apparatus for determining the concentration of alcohol in the

breath, 2 specimens of his breath and may indicate the manner in which he is to comply with the requirement,

(b) require the person either:-

(i) to permit a designated doctor to take from the person a specimen of his blood, or

(ii) at the option of the person, to provide for the designated doctor a specimen of his urine…”

3. Section 13(2), under which the Defendant is charged in the present case, reads:-

“(2) … a person who refuses or fails to comply forthwith with a requirement under subsection (1)( a ) shall be guilty of an

offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding

6 months or to both.”

4. In my view the meaning of these two sections is quite clear and unambiguous. Where a member of the Garda Síochána is of opinion

that a person has consumed an intoxicant he may at his discretion require the person, as in this case, to exhale into an apparatus or

he may require the person to give a specimen of blood or a specimen of urine. The offence provided for in subsection (2) is refusing or

failing to comply forthwith with “a requirement under subsection (1)(a)”. The only requirement in subsection (1)(a) is to provide two

specimens of breath. If the subsection had intended that the manner of compliance was also a requirement, it surely would have done

so by some such wording as “and may require such person to exhale into the said apparatus in a manner indicated by such

member”. In such circumstances, the person concerned would clearly be refusing or failing to comply with a requirement under the

subsection if the person did not comply with the manner indicated by the member. The offence created is failure to comply with the

“requirement”, and that is the only offence created.

5. This is to be contrasted with the provisions in s.12 of the Act, which relate to an apparatus for indicating the presence of alcohol

in the breath rather than the concentration of alcohol in the breath. Subsection (1)(a) of that section also contains a provision that

the member concerned “may indicate the manner in which he is to comply with the requirement”, and in subsection (2) there are

two offences set out, firstly the failure to comply with the requirement under the section and secondly the failure to comply with a

requirement in a manner indicated by a member of An Garda Síochána. There is no such distinction in the section under which the

Defendant is charged in the present case.

6. Furthermore, in s.13 itself, if the person is required to provide a specimen of blood or a specimen of urine, under subsection (3) it is

an offence either to refuse or fail to comply with the requirement, and there is a separate specific offence if the person refuses or

fails to comply with the requirement of a designated doctor in relation to the taking of a specimen of blood or urine. There are similar

provisions in s.14(5) and s.15(2) of the Act. In all these cases the draftsman of the Act is very careful to distinguish between

separate offences which may occur in relation to the same basic provision.

7. This is a penal statute, providing for a term of imprisonment in the event of the commission of an offence. In such circumstances,

if an offence is to be created by the statute, that offence must be clearly specified and defined. It is not something to be implied

from the wording of the statute. In the present case, the statute is quite clear that the offence is failure to comply with “a

requirement”, and I can see no justification for any construction of the section which would extend the offence beyond that stated.

8. Account must also be taken of the purpose of the section which is to enable the garda concerned to determine the concentration

of alcohol in the person’s breath. If the construction as put forward by the Complainant is accepted, then if the person concerned

does supply the specimens of breath sufficient to determine the concentration of alcohol, but does so in some manner other than that

indicated by the garda who makes the requirement, in the absence of some very specific provision I find it difficult to see how that

could possibly be construed as an offence. Equally, if the member of the Garda Síochána indicated a manner of compliance with the

requirement which was very difficult, surely the person cannot be penalised for giving the specimens of breath in some much simpler

manner. I would therefore answer the first question in the case stated as “No”.

9. With regard to the second question, the purpose of the requirement is to enable the Gardaí to determine the concentration of

alcohol in a person’s breath. This is the purpose for which the two specimens of breath are required. If a person exhales into the

apparatus in a manner which does not allow the concentration of alcohol to be determined, presumably because not a sufficient

quantity of the person’s breath enters the apparatus, then I do not think the person can be said to have provided the two specimens

of breath. Indeed, it is presumably to prevent this occurring that the provision is included enabling the member concerned to indicate

the manner in which the person is to comply with the requirement.

10. I would, therefore, answer the first question “No” and answer the second question “It is not sufficient compliance under the

section unless the concentration of alcohol in the breath can be determined as a result of the person so exhaling”.