Court holds that failing to provide a breath specimen in a manner indicated by a Garda constitutes an offence under the Road Traffic Act.

Murray C.J.

McCracken J.

Kearns J.

THE SUPREME COURT

[213/2004]

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

AND

IN THE MATTER OF AN APPEAL FROM THE DUBLIN METROPOLITAN DISTRICT COURT

THE DIRECTOR OF PUBLIC PROSECUTIONS

COMPLAINANT

AND

BRIDGET MOOREHOUSE

DEFENDANT

JUDGMENT of Mr. Justice Kearns delivered the 28th day of July, 2005

1. This matter comes before the court by way of case stated from the Circuit Court (Judge Matthews) pursuant to s. 16 of the

Courts of Justice Act, 1947. The case concerns the nature of the offence created by s. 13 of the Road Traffic Act, 1994, which

imposes an obligation on a person arrested under s. 49 of the Act to provide two specimens of his breath at a Garda Síochána

station.

2. The case stated arises out of the following set of facts. The defendant was charged on Dún Laoghaire charge sheet number 2525

that she did “on the 28th of December, 2001, at Dún Laoghaire Garda Station in said district being a person arrested under s. 49 (8)

of the Road Traffic Act, 1961, having been required by Francis Byrne, a member of the Garda Síochána at Dún Laoghaire Garda

Station pursuant to section 13 (1) (a) of the Road Traffic Act, 1994, to provide two specimens of your breath, did fail to comply

forthwith with the said requirement in the manner indicated by the said member of the Garda Síochána, contrary to s. 13 (2) of the

Road Traffic Act, 1994.”

3. The matter came before Dún Laoghaire District Court on the 1st July, 2002, when the defendant was convicted of the offence

charged and having served notice of appeal against the conviction came before the Circuit Court on the 15th March, 2004, when

evidence was taken, following which the case was adjourned to the 29th March, 2004, for legal submissions.

4. In the course of the evidence, Garda Brendan McGrath stated that he was a member of An Garda Síochána and was an observer in

a Shankill patrol car with Garda James Lacey as driver on the 28th December, 2001. They observed an Opel estate car driving

erratically and followed the vehicle. When the vehicle came to a halt, he arrested the defendant, Bridget Moorehouse, having formed

the opinion she was incapable of having proper control of a mechanically propelled vehicle in a public place.

5. The arrest took place in the early hours of the morning and, following caution, the accused was conveyed to Dún Laoghaire Garda

Station where she was placed in a waiting room. Garda Francis Byrne gave evidence that shortly after 1 a.m. he took Bridget

Moorehouse to the doctors’ room with Garda McGrath and showed her the intoximeter equipment. Having observed Bridget

Moorehouse for 20 minutes, he was satisfied she had “nil by mouth”. He then made a requirement under s. 13 (1) (a) of the Road

Traffic Act, 1994, as follows:-

“I am of the opinion that you have consumed an intoxicant. Therefore pursuant to s. 13 (1) (a) of the Road Traffic Act, 1994,

I am now requiring you to provide two specimens of your breath by exhaling into this apparatus designed for determining the

concentration of alcohol in your breath. Failure or refusal to comply with my requirement in the manner outlined by me is a

specific offence under s. 13 (2) of the Road Traffic Act, 1994. Penalty on summary conviction shall render you liable to a fine

not exceeding £1000, or to imprisonment to a term not exceeding 6 months or to both.”

6. He asked Bridget Moorehouse if she understood the requirement which he explained in ordinary language and she said that she did.

Having entered her details into the intoximeter, he opened a sealed bag in front of Bridget Moorehouse which contained a mouthpiece

and he placed it on the breath tube. Prior to Bridget Moorehouse giving her first breath sample, he explained to her to inhale deeply,

to make a seal with her lips over the mouthpiece and to blow at a steady pace down the breath tube. Bridget Moorehouse was unable

to provide a complete breath specimen on this occasion or indeed in the course of two subsequent tests. She was unable to seal her

lips around the mouthpiece, and the breath she exhaled was not going into the breath tube. The case stated records that she did not

exhale sufficient air in order to provide a complete breath specimen. In cross-examination, Garda Byrne agreed that the defendant did

provide at least two specimens of her breath by exhaling into the apparatus, but these specimens were insufficient to allow the

apparatus to determine the quantity of alcohol, if any, in the specimen. The defendant was subsequently released from custody

having been charged by Sergeant James Murphy with having failed to provide two complete breath specimens in the manner outlined

to her by Garda Byrne. Evidence was also given that the formula used by the gardaí in making the requirement of the defendant to

provide two samples of her breath was in accordance with the instructions provided by the Garda Síochána as part of the instructions

for the operation of the intoximeter EC/IR.

7. The Circuit Court judge in the case stated on the 11th May, 2004, posed the following questions of law:-

(1) Where following an arrest under s. 49 of the Road Traffic Act, 1961, the arrested person is required to provide two

specimens of his breath pursuant to s.13 (1) (a) of the Road Traffic Act, 1994, and where the member of An Garda Síochána

indicates the manner in which the arrested person is to comply with the requirement, does s.13 (2) of the Road Traffic Act,

1947, make it an offence to refuse or fail to comply with the requirement in the manner outlined by the member of An Garda

Síochána making the requirement? If the answer to this question is “no”, then

(2) Where following an arrest under s. 49 of the Road Traffic Act, 1961, the arrested person is required to provide two

specimens of his breath pursuant to s.13 (1) (a) of the Road Traffic Act, 1994, and does so by exhaling into the apparatus

designed for determining the concentration of alcohol in his breath, is that sufficient compliance with the “requirement” under

the section so as to provide the arrested person with a defence to a charge of refusing or failing to comply forthwith with the

requirement under s. 13 (1) (a) of the Road Traffic Act, 1994?

Relevant sections of the Road Traffic Act, 1994

8. The provisions of s. 13 of the Road Traffic Act, 1994, which are relevant in the circumstances of the present case, are s. 13 (1)

(a) and s. 13 (2). Section 13 (1) is in the following terms:-

“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,…”

Section 13 (2) of the Road Traffic Act, 1994, provides as follows:-

“Subject to section 23 [which provides a defence for non-compliance in certain circumstances], 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.”

9. In argument before this court, counsel on behalf of the defendant contends that the behaviour which is criminalised by s. 13 (2) is

only the refusal or failure forthwith to comply with a requirement made under s. 13 (1) (a). In other words, where a requirement is

made, and the person does not comply, then, simpliciter, he commits an offence. Section 13 (2) does not, it was argued, criminalise

a refusal or failure forthwith to comply with the requirement “in the manner indicated by the said member of the Garda Síochána” ,

being the charge that was laid against the defendant in the present case. Consequently, where a requirement is made, and the

person complies by giving a specimen but does not do so in the manner indicated by the garda, he does not commit an offence.

10. It was further submitted that if the legislature had intended to make it an offence to fail to comply with the requirement “in the

manner indicated by the…member of the Garda Síochána” then this could have been provided for in s. 13 (2) of the 1994 Act.

11. Section 12, the immediately preceding section, deals with the administration of roadside preliminary breath or breathalyser tests.

Section 12 (1), insofar as is relevant, provides as follows:-

“Whenever a member of the Garda Síochána is of opinion that a person in charge of a mechanically propelled vehicle in a public

place has consumed intoxicating liquor, he may require the person -

(a) to provide, by exhaling into an apparatus for indicating the presence of alcohol in the breath, a specimen of his/her

breath… and may indicate the manner in which the person is to comply with the requirement…”

12. Section 12 (2) then provides that:-

“A person who refuses or fails to comply forthwith with a requirement under this section, or to comply forthwith with such a

requirement in a manner indicated by a member of the Garda Síochána, 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.”

13. Section 12 (2) therefore unambiguously makes it an offence not just to refuse or fail to comply with the requirement made under

the section, but also makes it an offence to refuse or fail to do so in a manner indicated by a garda. This provision is absent from s.

13 (2).

14. Section 2 of the Road Traffic Act, 2003, substituted a new section for s. 12 of the Road Traffic Act, 1994, which did no more

than alter the amount of penalty from £1000 to €2500. It did not alter the provision whereby s. 12 repeated the duality of offences

created under subs. 12 of the 1994 Act. This, it was submitted, provides further confirmation that the offence under s. 13 with which

the defendant has been charged in the present case is not one known to the law.

15. It was further submitted that the provisions of s. 13 could be usefully contrasted with the provisions contained at s. 14 of the

1994 Act, which deals with the powers of a garda where a motorist is under suspicion of having consumed drugs. Section 14 (4)

provides:-

“Where a person is at a Garda Síochána station either pursuant to subsection (1) or having been arrested under subsection

(3), a member of the Garda Síochána may there require the person either -

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

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

16. Section 14 (5) then goes on to provide:-

“Subject to section 23, a person who, following a requirement under subsection (4) -

(a) refuses or fails to comply with the requirement, or

(b) refuses or fails to comply with a requirement of a designated doctor in relation to the taking under that subsection

of a specimen of blood or the provision under that subsection of a specimen of urine,

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.”

17. It was submitted, that, as in the case of s. 12, s. 14 creates a duality of offences. It makes it an offence not just to refuse or

fail to comply with a requirement, but it also makes it an offence to refuse or fail to comply with the requirement in relation to the

taking of a specimen. The criminalisation of the failure or refusal to comply with an instruction in relation to the manner in which a

specimen is to be provided is absent from s. 13.

18. In response, counsel on behalf of the Director of Public Prosecutions submitted that the manner in which a person is instructed to

comply with the requirement to provide two specimens of his breath is in itself an ingredient of the requirement. The Oireachtas, it

was submitted, obviously took the view that persons might need to be directed by the gardaí as to how to use the machine so as to

provide a specimen. The section simply left it open to the gardaí to fill in the precise ingredients of the requirement at their own

discretion. This does not however mean that the gardaí are defining the offence themselves, for any directions that they give can

only be given in the context of the manner of “exhaling into an apparatus for determining the concentration of alcohol in the breath.”

19. Any alternative view could frustrate the operation of the section. For example, where a garda tells a person that a particular

machine needs to be exhaled into via a mouthpiece for five seconds with a deep breath in order for a specimen to be obtained, a

situation could well arise whereby a person lightly exhales into the machine via its air-vent for two seconds. Such a person could

argue that they had complied with the plain meaning of the words of the section in that there was now a specimen of their breath

lodged somewhere in the machine. The only logical meaning of the word “specimen” in s. 13 (1) (a) is that it is a sample which

permits the concentration of alcohol in the breath to be determined. In such circumstances, it follows that the direction given by the

gardaí as to the manner in which such a sample is to be obtained is an ingredient of the offence. Precisely the same considerations

provided the answer to the second question raised in the case stated, namely, that the only logical meaning of the word “specimen”

in the particular context is that it is a sample which permits the concentration of alcohol in the breath to be determined.

20. Counsel relied on D.P.P v. Doyle [1996] 3 IR 579 as authority for the proposition that s. 13 of the Road Traffic Act, 1978, should

not be interpreted in an artificial manner. That section provided that a person committed an offence who “refuses or fails” to comply

with a requirement to provide a specimen of blood or urine. On a consultative case stated from the District Court, Geoghegan J. held

that s.13 (3) of the Act of 1978, created one offence, the offence of non-compliance with the requirement to permit a sample to be

taken. The court rejected the argument that the section created two offences, that of failing to provide a sample and that of

refusing to provide a sample. It had been submitted in the case that although the evidence established a refusal, it did not establish a

failure, and that as the charge in the summons was a failure only, the defendant was entitled to be acquitted. Geoghegan J. held at

p. 583 :-

“I agree with the argument of Ms. Egan, counsel for the Director of Public Prosecutions, that s. 13 of the Act creates one

offence only and that in essence it is the offence of non-compliance with the requirement. It is to avoid possible loopholes and

strained interpretations of s. 13 of the Act that the words ‘refuse or fail’ are used”.

21. Thus, while it was conceded there was an obligation to construe penal statutes strictly, that did not mean that they should be

construed so as to favour a defendant whenever there is a debate about what a section means. A penal statute should not be

presumed to create an absurdity any more or less than any other statute should be.

22. Reliance was also placed on the observations of Denham J. in D.P.P. (Ivers) v. Murphy [1999] 1 IR 98 at 111, where she stated:-

“The rules of construction are part of the tools of the court. The literal rule should not be applied if it obtains an absurd result

which is pointless and which negates the intention of the legislature. If the purpose of the legislature is clear and may be read

in the section without rewriting the section then that is the appropriate interpretation for the court to take.”

23. Accordingly, it was submitted that a purposive approach to interpretation can co-exist with the requirement to construe penal

legislation strictly. Common sense, it was suggested, is not inconsistent with strictness.

24. Accepting that it was not obvious why the legislative drafters drew a distinction in the manner in which s. 13 differs from s. 12

and s. 14, it was nonetheless submitted that the additional words in s. 12 and s. 14 are not essential and simply copper-fasten what

is the true position in any event. The alternative view is that the legislative drafters were of the view that persons should not be able

to frustrate s. 12 and s. 14 of the Act by providing a literally correct but practically useless and absurd “compliance”. Be that as it

may, the court, it was submitted, should not for its part interpret s. 13 so as to permit its abuse and thus achieve an absurd result.

Decision

25. It is a well established presumption in law that penal statutes be construed strictly. This requirement manifests itself in various

ways, including the requirement to use express language for the creation of an offence and the further requirement to interpret

strictly words setting out the elements of an offence [Maxwell on The Interpretation of Statutes, 12th Ed., (pp. 239-240].

26. If there is any ambiguity in the words which set out the elements of an act or omission declared to be an offence, so that it is

doubtful whether the act or omission in question in the case falls within the statutory words, the ambiguity will be resolved in favour

of the person charged. A desired statutory objective must be achieved clearly and unambiguously, particularly where statutes of

strict liability, such as the Road Traffic Acts, are concerned. Thus, in construing a penal statute, the court should lean against the

creation or extension of penal liability by implication.

27. In D.P.P. v. Corcoran [1995] 2 IR 259 this principle was applied specifically by the High Court (Lavan J.) to hold that where a

requirement under s. 13 (1) (b) of the Road Traffic (Amendment) Act, 1978, has been made of an arrested person and that person

opts to permit a specimen of blood to be taken but through no fault of that person the designated medical practitioner is unable to

obtain a specimen, that person is under no legal obligation to furnish a specimen of his urine. Emphasising that the court was not

entitled to go beyond the plain meaning of the subsection concerned, Lavan J. at p. 266 adopted the same quotation from Maxwell on

the Interpretation of Statutes (12th Ed, 1976) which Blayney J. had quoted with approval in Howard v. The Commissioner of Public

Works [1994] 1 IR 101 at p.154, saying:-

“Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it

must be enforced however harsh or absurd or contrary to common sense the result may be. The interpretation of a statute is

not to be collected from any notions which may be entertained by the court as to what is just and expedient; words are not

to be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason appears why

they should not be embraced or excluded. The duty of the court is to expound the law as it stands, and to ‘leave the remedy

(if one be resolved upon) to others’.”

28. That is not to say that a penal statute cannot be construed in a purposive manner, or that the court should readily adopt a

construction which leads to an artificial or absurd result. This is particularly so in Road Traffic Act cases and I find myself in complete

agreement with the sentiment expressed by O’Flaherty J. in D.P.P. v. Cormack [1999] 1 ILRM 398 at p. 400 when, in relation to a

prosecution under s. 49 of the Road Traffic Act, 1961, he stated:-

“Unfortunately, there is I think a certain mythology abroad that some onus rests on the prosecution to prove cases to an

impossible extent so as to exclude every hypothesis that might occur to the most ingenious mind. That is not the law.”

29. In D.P.P. v. Stewart [2001] 3 IR 103 I felt obliged to note at p. 111 that:-

“It is probably true to say that no area of law has so highlighted the ingenuity of Irish lawyers as that developed in respect of

cases under the Road Traffic Acts…”

30. Bearing these principles and caveats in mind, one may now turn to consider precisely what offences are created by s. 13 of the

Road Traffic Act, 1994.

31. In this regard, it is useful to note what Robert Pierse has to say in relation to refusal offences under s. 13 in his book Road Traffic

Law (Vol 1: Commentary, 3rd ed.), (Dublin, 1st law, 2004). The author states (at para.6.7.5):-

“Section 13 creates three offences, i.e:

(a) Refusal to give, when required by or/and as directed by a Garda, two breath specimens under section 13(1)(a) and

subsection (2) of section 13 of the 1994 Act….

(b) Refusal to give the doctor the blood or urine specimen – subsection (3)….

(c) Refusal to give an alternative specimen(s) as required – subsection (3)”.

32. It should be noted from the foregoing that Pierse does not consider the refusal to give breath specimens in a manner indicated by

a garda to be an offence under the section.

33. By contrast under s. 12 of the same Act which provides for roadside breath tests, the author states (at para 6.5.3):-

“It is not an offence to fail the screening breath test. An offence is committed by a person who refuses or fails to comply

immediately with any of the supra requirements under this section or to comply immediately with such a requirement in a

manner indicated by a Garda Síochána.”

34. In other words, two separate offences are created by s. 12. However, can it be said that two separate offences are created by

s. 13 (2)?

35. Having regard to the plain meaning of the words contained in s. 13 (2) and the marked contrast in terminology between s. 13 (2)

and the express wording of s. 12, and adopting an approach to construction which does not ignore other provisions of the same Act,

particularly when they are addressed to similar or identical issues, one can only conclude that two offences are not created by s. 13

(2).

36. Ultimately, therefore, the kernel of this case is to enquire whether the words “and may indicate the manner in which he is to

comply with the requirement” are merely enabling provisions for the garda making the requirement under s. 13 (1) (a), or do they

form part of the requirement itself.

37. An immediate consequence of finding that they form part of the requirement would be that no distinction or difference could be

drawn between an outright refusal to provide a breath specimen on the one hand and a failure to comply with the requirement of a

garda as to how it should be done on the other. However, these are clearly two quite different factual circumstances which can not

logically be conflated into one. The fact that they are different is expressly recognised in s. 12.

38. I am therefore driven to conclude that the words do not form part of the requirement, but are merely enabling words whereby a

garda may and should indicate how a breath test is to be performed. For the words to have the meaning contended for by counsel on

behalf of the complainant would in reality require the insertion of the following words in s. 13 (2):-

“Subject to section 23, a person who refuses or fails to comply forthwith with a requirement under subsection (1) (a), or to

do so in a manner indicated by a member of the Garda Síochána, shall be guilty of an offence and shall be liable…”

39. Quite clearly, to give s. 13 this extended meaning would of necessity involve judicial rewriting of the statutory provision, which is

clearly impermissible.

40. Thus, a summons or charge sheet which had simply contended that the defendant had failed pursuant to s. 13 (1) (a) of the Road

Traffic Act, 1994, to provide two specimens of her breath, would clearly have been an offence identified by and coming within the

terms of s. 13 of the Act.

41. Had that occurred the entire debate as to whether there was a “reasonable excuse” for failure to provide a breath test could

have taken place within section 23 (1) of the 1994 Act, which provides a defence if the defendant can satisfy the court there was a

“special and substantial reason” for his refusal or failure, provided the arrested person supplied or offers to supply the other type of

sample.

42. However, I would be of the view that the charge in this particular case, and the conviction recorded in respect thereof is one

which is not provided for by the section and thus by virtue of the requirements to construe such statutes strictly, the answer to the

first question in the case stated must be “no”.

43. Insofar as the second question is concerned, I agree with the submission of counsel for the complainant that the specimen of

breath provided must be such as to enable the concentration of alcohol in the breath to be measured. That is the purpose for which

the specimen is provided. If it does not so enable or permit , there is non-compliance with the requirement under the section, so that

the arrested person thereafter will in the ordinary way only have such defence to a charge of refusing or failing to comply forthwith

with the requirement as may arise under s. 23 of the Act. I am obviously leaving to one side other defences which might of course

still be raised, such as an alleged defect in the equipment or the like. The answer now given is purely directed to the issue of what is

or is not compliance by the person of whom the requirement is made. I would therefore answer the second question by stating that

merely exhaling into the apparatus is not sufficient compliance with the requirement under the section unless it enables the

concentration of alcohol in the breath to be determined.