Court holds refusal to provide blood after reasonable urine opportunity is not a valid defence to drink driving charge.

THE SUPREME COURT

McCracken J.

Kearns J.

Macken J.

[S.C. No. 159 of 2005]

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

PEADAR MALONE

RESPONDENT

JUDGMENT of Mr. Justice Kearns delivered the 28th day of June, 2006

1. This is a case stated by His Honour Judge Raymond Groarke, assigned to the Eastern Circuit, pursuant to s.16 of the Courts of

Justice Act, 1947, seeking the determination of certain questions of law which arose in the course of proceedings before him in the

Circuit Court.

2. The respondent appeared before the Circuit Court judge at Trim Circuit Court on the 31st October, 2003, to prosecute an appeal

from the District Court in respect of an offence alleged to have been committed by him on the 19th January, 2003, at Ashbourne

Garda Station when, being a person arrested under s.49(8) of the Road Traffic Act, 1961, and having been required by Garda Niall

O’Sullivan, a member of the Garda Síochána, at Dunshaughlin Garda Station, pursuant to s.13(1)(b) of the Road Traffic Act, 1994, to

permit a designated doctor to take from him a specimen of his blood or at his option to provide a designated doctor with a specimen

of his urine, did refuse to permit the doctor to take from him a specimen of his blood contrary to s.13(3) of the Road Traffic Act,

1994.

3. The facts as proved, admitted or agreed, or as found by the learned Circuit Court judge were as follows:-

(a) Garda Niall O’Sullivan stopped a motor vehicle being driven by the respondent on the 19th January, 2003, at 12:10am at

Grange End, Dunshaughlin, Co. Meath, a public place. He noticed a strong smell of alcohol from the respondent’s breath and his

speech was slurred. Garda O’Sullivan asked him to step out of the vehicle and observed that he was unsteady on his feet.

Garda O’Sullivan formed the opinion that the respondent was under the influence of an intoxicant to such an extent that he was

incapable of having proper control of a mechanically propelled vehicle and that he had committed an offence under s.49(1) and

(2) or (3) of the Road Traffic Acts, 1961-1994. He informed the respondent of his opinion and explained to him what it meant.

At 12:15am he arrested the respondent under s.49(8) of the Road Traffic Acts, 1961-1994.

(b) The respondent was conveyed to Ashbourne Garda Station, arriving at 12:30am. Dr. Gujral was contacted and arrived at

the station at 12:51am. Garda O’Sullivan introduced the respondent to Dr. Gujral as a person arrested under s.49(8) of the Road

Traffic Acts, 1961-1994. He introduced the doctor as a designated doctor.

(c) Garda O’Sullivan made a requirement of the respondent under s.13(1)(b) of the Road Traffic Acts, 1961-1994, to permit Dr.

Gujral, the designated doctor, to take from him a specimen of his blood or as his option to provide for Dr. Gujral a specimen of

his urine. Garda O’Sullivan outlined the consequences of failure or refusal to comply with the requirement.

(d) At 12:57am the respondent opted to provide a sample of urine. Garda O’Sullivan handed Dr. Gujral a sealed box marked “U”

and a jug sealed in plastic. Dr. Gujral opened the apparatus required for taking the sample and all was present and correct. Dr.

Gujral handed the respondent the jug and outlined what he required. Garda O’Sullivan took the respondent to the toilet at

12:58am. At 1:07am the respondent had failed to provide a sample and asked for another minute. At 1:12am the respondent

was taken to the toilet again and by 1:15am no sample had been provided.

(e) Garda O’Sullivan informed the respondent that he had failed to provide a urine sample and at 1:16am Garda O’Sullivan made

a requirement of him under s.13(1)(b) of the Road Traffic Acts, 1961-1994, to permit Dr. Gujral to take from him a specimen of

his blood. Garda O’Sullivan outlined the consequences of his failure or refusal to comply with the requirement.

(f) The respondent stated that he would “give a urine sample later”. At 1:17am Garda O’Sullivan formed the view that the

respondent had refused to comply with his requirement. At 1:25am the respondent was returned to the cell and Dr. Gujral left

the station at 2:20am.

(g) The respondent was subsequently charged with the offence set out in paragraph 1.

4. At the conclusion of the prosecution case, counsel for the respondent submitted that the respondent had not in fact refused to

provide a blood sample and that the prosecution had made an error in deeming this to be a refusal.

5. In reply, the prosecution submitted that there was no provision requiring or authorising any delay or postponement in the taking of

a specimen beyond what might reasonably be required to enable the person to exercise his statutory choice between giving a

specimen of blood or a specimen of urine. It was further submitted that to escape the obligation of permitting a blood specimen to be

taken, the accused must actually provide a specimen of urine, not simply agree to provide the specimen within a limited or reasonable

time. Where a person opts to provide a urine sample and is unable to do so, the obligation to permit the taking of a blood specimen

revives. The prosecution acknowledged that, as a matter of practice and common courtesy, the doctor and gardaí involved might

afford a person concerned a reasonable interval to provide an agreed sample. However, the requirement to provide a urine sample was

conterminous with the obligation to permit the extraction of a blood specimen as a matter of law. It was submitted that the time

permitted to the respondent to provide a sample was reasonable.

6. The learned Circuit Court judge indicated that he did not believe that the respondent had been given a reasonable time to provide

the urine sample, the judge having determined that the time allowed for this purpose was from 12:58am to 1:16am. However, he

agreed to state for the opinion of this Court the following question of law:-

“(1) Was I entitled in law to hold that the respondent had not been given a reasonable time to provide a urine sample?

(2) If the answer to question 1 is in the affirmative, was I entitled at law to dismiss the charge?”

Relevant Statutory Provisions

7. Section 13(1) of the Road Traffic Act, 1994, provides that:-

“Where a person is arrested under section 49 (8) or 50 (10) of the Principal Act or section 12 (3), or where a person is

arrested under section 53 (6), 106 (3A) or 112 (6) 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—

(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,

and if the doctor states in writing that he is unwilling, on medical grounds, to take from the person or be provided by him with

the specimen to which the requirement in either of the foregoing subparagraphs related, the member may make a

requirement of the person under this paragraph in relation to the specimen other than that to which the first requirement

related.”

8. Section 13(3) provides that:-

“…person who, following a requirement under subsection (1) (b) -

(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…or to imprisonment for a term not exceeding

6 months or to both.”

Submissions of the Parties

9. Before this Court it was submitted by Patrick Horgan, senior counsel for the respondent, that the Act of 1994 does not set down

any specific period of time within which the requirements imposed pursuant to s.13 of the Road Traffic Act, 1994, must be complied

with by the person charged. This was in marked contrast to other sections of the Act, such as s.12 (which permits a member of the

Garda Siochana to require a person to remain at a place for not more than one hour until an apparatus for a breath test becomes

available) and s.16 (which provides for the detention for a period not exceeding six hours of an intoxicated driver who may be a

danger to others). Mr. Horgan submitted that it was clear from cases such as Director of Public Prosecutions v. Finn [2003] 1 I.R. 372

that where the authorities are entitled to perform a particular procedure on arrest, they are entitled to a reasonable period of time in

which to do it. It followed therefore that a person charged must also be permitted a correspondingly reasonable period of time to

comply with a procedure such as that contained in s.13 of the Act.

10. Counsel submitted that the statutory scheme must be interpreted as meaning that the person charged must be afforded a

reasonable time, both to exercise his statutory choice between giving a specimen of blood or a specimen of urine, and further, where

he opts to provide urine, a reasonable period of time to comply with that procedure.

11. Mr. Horgan cited in support the following passage from the judgment of Keane C.J. in Director of Public Prosecutions v. Mangan

[2001] 2 I.R. 373 (at pp.382-383):-

“There cannot be the slightest doubt as to what the intention of the Oireachtas was: it must have been envisaged that, in

every case where a person chose to avail of the option to give urine, an interval of time, however short, would elapse before

the specimen was provided. It must equally have been envisaged that, in some cases, a person might be simply unable to

provide a specimen and again it cannot have been the intention of the Oireachtas that in those circumstances the accused

would at that point in time have committed an offence in having refused to permit the doctor to take a specimen of his blood

or to provide a specimen of his urine, nor indeed (not surprisingly) is any such submission advanced on behalf of the accused

in the present case.

It follows inevitably that, provided the garda had given a reasonable time to the accused to provide the specimen, and it is

not suggested that she had not, the duty on the accused to permit the doctor to take a blood specimen revived at the end of

the period in question.”

12. Mr. Horgan submitted that, if this citation properly stated the law, the first question posed in the Case Stated had to be

answered in the affirmative. The second question essentially was a matter of fact for the learned trial judge, whose view that the

period of time allowed was not reasonable should not be disturbed.

13. In response, Sunniva McDonagh, counsel for the Director, submitted that it was well settled that the provision of a specimen of

urine is an alternative requirement which may be substituted at the option of the person concerned. In Director of Public Prosecutions

(Coughlan) v. Swan [1994] 1 I.L.R.M 314, Egan J. stated at pp.317-318 as follows:-

“The obligation under the section is to permit the taking of a specimen of blood but subject, at the option of the person, to

provide a specimen of his urine. The word used is ‘option’. If the person declares that he wishes to avail of the option but then

finds that he is unable to do so, the obligation to permit the taking of a specimen of blood revives and, in such circumstances,

a refusal by him to permit the taking of blood is the offence with which he should be charged.”

14. Ms. McDonagh further contended that where the option to provide urine is exercised, the obligation to provide the specimen is

coterminous with the obligation to permit a blood specimen to be taken. In Director of Public Prosecutions (Garda O’Driscoll) v.

O’Connor [2000] 1 I.L.R.M. 60 Murphy J. (with whom O’Flaherty, Barrington, Keane and Barron J.J. concurred) stated as follows:-

“Whilst it may be expected that the designated doctor would act with appropriate consideration and courtesy for the person

from whom a specimen of blood was to be taken, there is no provision in the section requiring or authorising any delay or

postponement in the taking of the specimen beyond what might reasonably be required to enable the person to exercise his

statutory choice between giving a specimen of blood or a specimen of urine. Indeed the taking of a sample of either class is

always in the context that the operation must be completed within three hours from the time at which the person concerned

was driving the motor car. To that extent at least the passage of time is a factor to be borne in mind. If there is no

moratorium on the taking of a blood specimen then there can be no statutory requirement for the allowance of time for the

provision of a urine specimen. To escape the obligation of permitting a blood specimen to be taken the person concerned must

actually provide a specimen of urine: not simply agree to provide such a specimen within a limited or reasonable time. Of

course it can be appreciated that the person from whom a specimen is required may not be able to provide the urine sample

immediately.

It is not then a question of how long a doctor and the gardaí must wait. The legal consequence, as explained in DPP (Coughlan)

v. Swan (above), is that, where a person opts to provide a urine sample and is unable to do so, the obligation to permit the

taking of a blood specimen revives. The election to provide a urine sample is not exercised by agreeing to provide such a

sample but by the provision of it. So far from an entitlement to 30 minutes or 15 minutes or any other period which might

appear reasonable, it is my view that the requirement to provide a urine sample is coterminous with the obligation to permit

the extraction of a blood specimen as a matter of law. No doubt as a matter of practice and common courtesy the doctor

and gardaí involved would afford the person concerned a reasonable interval to provide the agreed sample. However, in the

nature of the statutory rights and obligations I am satisfied that the learned judge of the District Court was wrong in

concluding that the respondent was entitled to an interval which he assessed in the circumstances of the present case at 30

minutes or indeed to any such interval.”

15. Ms. McDonagh submitted that any concept of “reasonableness” had to be construed in the context that a sample, be it of blood

or urine, had to be taken within three hours of driving. Accordingly, what might appear to be a reasonable time in a different context

would not necessarily be reasonable in this context. It could readily be anticipated that persons who felt they could delay matters so

as to defeat the requirement that a sample be taken within three hours might frequently do so. So, if there were a practice to allow,

say, a twenty minute period, it could not be departed from simply because the three hour time limit was drawing close. It could not,

she submitted, have been the intention of the Oireachtas to afford persons who opted to provide a specimen of urine the possibility

of circumventing the three hour time limit in circumstances where a blood sample must be provided immediately. In the instant case,

the person concerned had paid a visit to the bathroom on two occasions and had failed to provide a sample. No extenuating

circumstances had been canvassed in cross-examination to suggest that there was either some medical or other problem which would

account for the failure to provide the specimen on these various occasions.

Decision

16. The essential difficulty in this case arises from what appear to be somewhat inconsistent observations made in the two decisions

of this Court in the cases cited above as to whether there is a ‘reasonable time test’ to be applied in respect of compliance with

those provisions of section 13 of the Road Traffic Act, 1994, which relate to the exercise of the option to provide blood or urine and

to the actual provision of urine where that option is exercised. This case stated relates exclusively to the question of the time or

opportunity to provide urine in compliance with the statutory requirement, a decision having been made by Mr. Malone to provide

urine.

17. In Director of Public Prosecutions v. O’Connor [2000] 1 I.L.R.M. 60, Murphy J., in delivering judgment on behalf of a five member

Supreme Court, emphasised that the requirement to provide a urine sample under the section is, as a matter of law, coterminous with

the obligation to permit the extraction of a blood specimen. He ruled out any entitlement to any specific period or periods of time

which might appear reasonable for compliance with the requirement and expressed himself satisfied that the District Court judge was

wrong in concluding that the respondent in that particular case was entitled to an interval which he, the District Judge, had assessed

in the circumstances of the case at thirty minutes. As is apparent from the citation which appears at an earlier point in this judgment,

Murphy J. took the view that there was no provision in the section requiring or authorising any delay or postponement in the taking of

a specimen beyond what might reasonably be required to enable the person to exercise a statutory choice between giving a specimen

of blood or a specimen of urine. The only qualification to this strict approach is to be found in that portion of his judgment where

Murphy J. stated (at p.64):-

“No doubt as a matter of practice and common courtesy the doctor and gardaí involved would afford the person concerned a

reasonable interval to provide the agreed sample.”

18. For some peculiar reason, this decision does not appear to have been opened to this Court in Director of Public Prosecutions v.

Mangan [2001] 2 I.R. 373. For that reason alone, the latter case is somewhat unsatisfactory. Furthermore, in the latter case, the

questions which the Court had to determine did not correspond with those raised in the instant case or with those raised in Director

of Public Prosecutions v. O’Connor. In Mangan, the Court had to determine whether the requirements made by the investigating garda

were properly made. To that extent, certain observations of Keane C.J. may properly be seen as obiter, particularly when he stated

the following at pp. 382-3:-

“There cannot be the slightest doubt as to what the intention of the Oireachtas was: it must have been envisaged that, in

every case where a person chose to avail of the option to give urine, an interval of time, however short, would elapse before

the specimen was provided. It must equally have been envisaged that, in some cases, a person might be simply unable to

provide a specimen and again it cannot have been the intention of the Oireachtas that in those circumstances the accused

would at that point in time have committed an offence in having refused to permit the doctor to take a specimen of his blood

or to provide a specimen of his urine, nor indeed (not surprisingly) is any such submission advanced on behalf of the accused

in the present case.

It follows inevitably that, provided the garda had given a reasonable time to the accused to provide the specimen, and it is

not suggested that she had not, the duty on the accused to permit the doctor to take a blood specimen revived at the end of

the period in question.”

19. I am satisfied that this passage should be taken to mean that the statutory provisions are to be interpreted reasonably, rather

than meaning that a reasonable time of unspecified duration for compliance is to be afforded to a person of whom a requirement under

the section has been made. In my view the approach formulated by Murphy J. in DPP v O’Connor is, subject to a requirement of

reasonableness in the operation of the statutory provisions, to be preferred. Such an approach avoids all the complications of

assessing whether particular periods of time are adequate or otherwise. What is a reasonable time in one context may cease to be so

in another. The requirement under section 13 must be understood in the context that the procedure in question must be completed

within three hours of driving as provided for by the legislation. Delays which may defeat the intention of the legislature cannot be

imported into the Act. Thus, if a person opts to provide urine, he must be given an opportunity for compliance and, where he fails to

actually provide urine, the obligation to provide a blood specimen immediately revives.

20. It seems to me that the ‘opportunity for compliance’ may be understood as consisting only of the following elements: firstly, the

person who has exercised the option to provide a urine sample must forthwith be provided with an appropriate container, he must

then be requested to go to a specific place to provide the specimen and, thirdly, that person must actually provide the specimen at

the expiration of such short time as is appropriate for the normal performance of that function.

21. Understood in this way, “reasonable opportunity” may be taken as meaning the sort of opportunity which a parent might give a

child to avail of the bathroom facilities before a lengthy journey by car, bus or train, or such as might occur where a person attending

a play in a theatre avails of the opportunity to visit the washroom during an intermission. It seems to me that any concept of

“reasonableness” cannot be stretched further than to mean “reasonable opportunity” in the context of the overarching requirements

in the Road Traffic Act that all of the procedural steps to deal with alleged offences of drink driving be completed within a relatively

short time.

22. The purpose of affording that opportunity to the person concerned is not to ensure that persons will ultimately be able to provide

a sample, but rather give them an opportunity, coterminous with the requirement to provide blood, to provide urine if they are in a

position to do so. The fact that the person concerned has paid a visit to the bathroom and has not brought any extenuating

circumstances to light which he alleges could be relevant to the attention of the gardaí is evidence in itself that he has been afforded

an adequate opportunity to provide a urine sample.

23. Having reached that conclusion, I would answer the first question in the case stated in the negative. That being so, any

requirement to answer the second question does not arise.