Supreme Court dismisses appeal challenging breath test procedures as unconstitutional interference with fair trial rights.

THE SUPREME COURT

Murray C.J. 462, 463/04 & 469/04

Denham J.

Hardiman J.

Fennelly J.

Kearns J.

BETWEEN

ASHLEY McGONNELL, OLIVER QUINLAN

AND JOHN PURCELL

PLAINTIFF/APPELLANTS

-v-

ATTORNEY GENERAL AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

DEFENDANTS/RESPONDENTS

JUDGMENT of the Court delivered the 28th day of November, 2006 by Murray C.J.

The three plaintiffs in these proceedings are all facing prosecutions which are currently pending in the District Court under s.

49 of the Road Traffic Act, 1961 (“the Act of 1961”) (as amended) for offences alleging that they drove a motor vehicle in

a public place while over the legal breath / alcohol limit. Following their respective arrests under s. 49(8) of the Act of 1961,

each of the plaintiffs was brought to a Garda Station where they were required to exhale into an apparatus designed for

measuring breath alcohol.

The first two plaintiffs were required under statutory compulsion to exhale twice into an apparatus known as the Lion

Intoxilyzer 6000. The third plaintiff was required to exhale into an apparatus known as the Intoximeter EC/IR. All three

plaintiffs were furnished with printed read-outs of what purport to be statements of breath alcohol. By virtue of s. 17(1) of

the Road Traffic Act 1994 (“the Act of 1994”), the higher of the two readings was disregarded and it was the lower reading

which was “taken into account” for the purposes of s. 49 of the Act of 1961. That figure was itself reduced by 17.5% - an

administrative adjustment which provides a generous margin for any possible error in the reading although not mandated by

statute - and the subsequent figure was contained in the statutory s. 17(2) statement. In this connection it is appropriate to

mention that, while s.28 of the Road Traffic Act, 1968 provided for the obligation to provide a preliminary specimen of

breath, evidential breath testing was not introduced until 1999.

The Act of 1994 set out the procedures for evidential breath testing. It also provided for a system of tiered penalties, the

thresholds of significance for which are 35ug, 44ug and 66ug. Thus, while a driver with a result of 35ug has committed no

offence, a driver with results of higher than 35ug but less than 45ug is subject to a lesser range of penalties than a driver

who is over 44ug and so forth.

The plaintiffs now challenge the constitutionality of these procedures as provided for in the Act of 1994. The gist of the

plaintiffs’ case is that they have been denied the opportunity of an independent breath sample or other sample whereby the

same can be independently tested and the test results independently verified, as a result of which they contend they are

denied the possibility of an effective defence. It is contended on the plaintiffs’ behalf that the effect of these statutory

procedures is such that for all practical purposes the plaintiffs are liable to be convicted on the say so of a printout. Further,

it is argued that the procedures are a disproportionate interference with their rights because they fail to incorporate any

provision which would allow an accused person to request that a blood or urine sample be taken in addition to a breath test.

This would permit an independent test to be carried out.

These arguments were rejected by McKechnie J. in a reserved judgment delivered on 15 September, 2004. The action had

been at hearing for five days and in the course of that hearing the court heard evidence from a number of expert witnesses.

The factual circumstances of the individual plaintiffs

By virtue of a notice to agree facts, certain facts have been agreed between the parties so far as the three individual cases

are concerned.

Ashley McGonnell was arrested at Hill St., Monaghan on 17th September 2000. He was then brought to Monaghan Garda

Station where he was required pursuant to s. 13(1) of the Act of 1994 to exhale into a Lion Intoxilyzer. The first reading

was 45ug and the second reading was 44ug. The s. 17(2) certificate gave a reading of 36ug, i.e., which is one unit over the

statutory limit of 35ug.

Oliver Quinlan was arrested on April 25, 2000 and brought to Pearse St. Garda Station in Dublin. He was required to exhale

into a Lion intoxilyser. He duly complied with this statutory demand, resulting in a first reading of 89ug and a second reading

of 83ug. The first reading was then disregarded and the reading for the purposes of the s. 17(2) certificate was 68ug.

John Purcell was arrested pursuant to s. 49(8) of the Act of 1961 on February 26, 2001 and brought to Tallaght Garda

Station where he was required to exhale into an intoximeter. His first reading was 73ug and 70ug in the case of the second

reading. His statutory s. 17(2) reading was 57ug.

The relevant provisions of the 1994 Act

Section 13 of the Road Traffic Act 1994 (as amended) provides:

“(1) Where a person is arrested under Section 49 (8) or 50 (10) of the Principal Act or Section 12 (4), 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:-

(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,

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

(2) and (3) omitted

(4) In a prosecution for an offence under this Part or under section 49 or 50 of the Principal Act it shall be

presumed, until the contrary is shown, that an apparatus provided by a member of the Garda Síochána for the

purpose of enabling a person to provide 2 specimens of breath pursuant to this section is an apparatus for

determining the concentration of alcohol in the breath”.

Section 17, as amended by section 23(1) of the Road Traffic Act, 2002, provides that

“(1) Where, consequent on a requirement under section 13 (1) (a) of him, a person provides two specimens of

his breath and the apparatus referred to in that section determines the concentration of alcohol in each

specimen –

(a) in case the apparatus determines that each specimen has the same concentration of alcohol,

either specimen, and

(b) in case the apparatus determines that each specimen has a different concentration of alcohol,

the specimen with the lower concentration of alcohol, shall be taken into account for the purposes

of sections 49 (4) and 50 (4) of the Principal Act and the other specimen shall be disregarded.

(2) Where the apparatus referred to in Section 13 (1) determines that in respect of the specimen of breath to be

taken into account as aforesaid the person may have contravened Section 49 (4) or 50 (4) of the Principal Act,

he shall be supplied forthwith by a member of the Garda Síochána with 2 identical statements, automatically

produced by the said apparatus in the prescribed form and duly completed by the member in the prescribed

manner, stating the concentration of alcohol in the said specimen determined by the said apparatus.

(3) On receipt of the statements aforesaid, the person shall on being requested so to do by the member

aforesaid --

(a) forthwith acknowledge such receipt by placing his signature on each statement, and

(b) thereupon return either of the statements to the member.

(4) A person who refuses or fails to comply with subsection (3) shall be guilty of an offence and shall be liable

on summary conviction to a fine not exceeding 1500 euro or to imprisonment for a term not exceeding three

months or to both.

(5) Section 21 (1) shall apply to a statement under this Section as respects which there has been a failure to

comply with subsection (3) (a) as it applies to a duly completed statement under this section.”

Section 18 deals with the procedure to be followed in the case of either blood or urine samples only. It provides in relevant

part as follows:

“(1) Where under this Part a designated doctor has taken a specimen of blood from a person or has been

provided by the person with a specimen of his urine, the doctor shall divide the specimen into 2 parts, place

each part in a container which he shall forthwith seal and complete the form prescribed for the purposes of

this section.

(2) Where a specimen of blood or urine of a person has been divided into 2 parts pursuant to subsection (1), a

member of the Garda Síochána shall offer to the person one of the sealed containers together with a statement

in writing indicating that he may retain either of the containers.”

Section 21 (1) of the Road Traffic Act 1994 provides that –

“A duly completed statement purporting to have been supplied under section 17 shall, until the contrary is

shown, be sufficient evidence in any proceedings under the Road Traffic Acts, 1961 to 1994, of the facts stated

therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall,

until the contrary is shown, be sufficient evidence of compliance by the member of the Garda Síochána

concerned with the requirements imposed on him by or under this Part prior to and in connection with the

supply by him pursuant to Section 17 (2) of such statement.”

It is the member of An Garda Siochana alone who determines whether there is to be (a) a breath test or (b) a blood or urine

test. Where a member seeks a blood sample, the person concerned may of course opt to provide a urine sample instead, but

on failing to do so the obligation to provide a blood sample revives. In all three cases here, the relevant Gardai invoked s.

13(1)(a) alone. Accordingly, none of the plaintiffs had the right to invoke s. 13(1)(b) or otherwise demand the right to give a

blood or urine sample. In addition, whereas the accused is given the right to a split sample of the blood or urine sample by

virtue of s. 18(1) and s. 18(2), no such right is afforded in the case of the accused where the provisions of s. 13(1)(a) are

invoked by the Garda in question. Critically, therefore, the accused has no right to an independent sample where a breath

sample is required and the exercise of discretion to request such a sample rests entirely with the Garda alone.

The judgment of the High Court

In the course of an elaborate judgment, McKechnie J. first concluded that:

“I believe that, overall, the defence evidence was particularly strong and that the contrary offered on behalf of

the plaintiffs failed to have any significant impact on the core basis of that evidence. Accordingly, this

conclusion means that in my opinion the plaintiffs have failed to demonstrate that the apparatus in question is

in any way flawed or incapable of complying with design standards. Accordingly, I believe that, in the light of

the evidence as tendered, in this particular case, I can only conclude that the results of both specimen one and

specimen two, of all the plaintiffs, are an accurate and reliable reflection of the level of concentration of

alcohol in each person's breath at the time when the samples were given. I cannot, I feel, come to any other

factual conclusion. Consequently, the legal challenge mounted on behalf of the plaintiffs must be considered in

this light.”

No actual evidence was given about the accuracy of the plaintiffs’ individual samples. This was because it is technically

impossible to preserve these (or any other) breath samples and no witness purported to give such evidence. However,

McKechnie J. reached his conclusions having heard evidence about the general reliability of the intoxilyzer/intoximeter. He

concluded, having analysed the technical and expert evidence to an exhaustive degree, that because the technology was

generally reliable, it must follow that the readings in each of the three cases was accurate.

McKechnie J. examined the statutory regime for breath sampling and compared it with the situation which prevails in the

case of blood and urine. He stressed that the option as to whether the test should be breath or blood or breath and blood

was entirely one for the Garda in question and that there was no mechanism whereby the breath sample could be preserved

and independently tested:

“Under the statutory regime in question, an arrested person has no choice as to the form of substance which

he provides for the purpose of alcohol analysis. The decision as to whether that should be breath or blood is

entirely that of the Garda. If, in his absolute discretion, he should specify breath, then, under pain of criminal

sanction, the motorist must comply. At no stage of the process, irrespective of circumstances, including

positive breath tests to any level, can the person involved insist upon a blood sample either to stand side by

side with, or to replace, a breath specimen. The discretion which exists vests solely in the member concerned:

see s. 13(1) of the 1994 Act. It is to be noted that this section provides no assistance whatsoever to the Gardaí

as to when, or in what circumstances, this discretion might be exercised one way as against another way.

From the evidence above outlined, it is quite clear that, at least for the present, the equipment under scrutiny

in these cases is not capable of splitting a sample of breath, and, accordingly, the arrested person cannot be

given any part or portion of either specimen which he has exhaled into the machine. In not having any such

portion available, it is evident that he cannot subsequently have it tested or analysed, or even have the

opportunity of so doing.

In addition, the specimens, which are a snapshot of a person's breath, cannot be preserved. Once the machine

has analysed the samples and produced its programme calculations, the specimens are lost. They are, for all

time thereafter, irretrievable. Moreover, there is no purpose in trying to repeat the process after one is

discharged from a Garda station, as any prosecution, if there should be one, will be based solely on the

samples previously given at that moment in time.

It is therefore abundantly clear that when the preferred method of testing is breath and breath only, the person

in question is in a significantly different position from an individual who has been requested to give blood.

Whether the sample should be blood or urine is immaterial in this context. Such a person has an opportunity

of having a portion of a single specimen independently assessed if he so wishes. That portion must have the

same properties as the retained portion, which the Medical Bureau has analysed. It is entirely irrelevant

whether he should avail of his entitlement or not, or whether, if analysed, the results should be corroborative

of guilt. It is the opportunity which is critical to fair procedures and constitutional justice.”

McKechnie J. acknowledged that different procedures obtained in the case of a blood or urine sample as compared with

breath:

“In the case of blood, the practice of the Medical Bureau has always been to test the specimen at least twice

and to do so through two different analysts and with two different machines. If the mean of these results show

a case to be critical, then a third test is preformed. A tolerance of about 4% is acceptable at the lower level

and 6% at the higher levels. Of course, as previously stated, this process cannot, by its very nature, apply to a

breath specimen.

Consequently, there can be no doubt but that from a defence opportunity point of view, an accused person who

has been obliged to give breath is in a different position facing trial than a person who has been requested to

give blood or who opts instead for urine. Many would say that those accused persons in the former category

are not only in a different position, but are also in a much less favourable one than the latter group.”

The judge then went on to consider the constitutional question:

“In deciding whether the plaintiffs rights have been infringed, I must as previously stated, consider the entire

circumstances of the cases. I must therefore be conscious of the fact that the system in existence is a reflection

of the will of the Oireachtas, which body is charged with the social responsibility of having in place an

effective regime to deal with the undoubted evil of driving whilst over the permitted level. Whilst there is no

question of this court applying any margin of appreciation, as was appropriate in Richardson v DPP [2003]

EWHC 359 (Admin), nevertheless it is important to emphasise that it is no part of the judicial function, to

create or establish its own system of dealing with this problem, no matter how one may think that a further

safeguard in a particular direction may be desirable. There was of course no legal impediment in the

Oireachtas in providing for the option of giving blood or urine in all or in certain given circumstances, if it

so desires, but evidently it chose not to do so. The jurisdiction vested in me however is not to decide on what

is absent, but rather to consider what is in place and decide the challenge accordingly. In so saying I am not

in any way suggesting that a comparison with blood or urine is anything other than highly relevant but the

primary focus of the adjudication must be on the impugned sections.”

The judge then proceeded to conclude that the legislation was not unconstitutional for the following reasons:

“In my opinion the overall system above described does not infringe any constitutional or legal rights of the

plaintiffs. In arriving at this conclusion I am of the view that the following are an adequate representation of,

and afford reasonable protection for, the rights of such plaintiffs. These are:-

(a) the statutory requirement under section 17(1) of the 1994 Act, of taking the lower reading of

both breath specimens,

(b) the 17.5% deduction from this reading: this is to cover, and in my view covers, all areas of

relevant uncertainty which have been identified in these cases. Though administrative only, this

deduction in my opinion is an essential part of the operating regime and its existence must be taken

to have created a legitimate expectation that it will continue. In addition its application does not

breach s. 17(1) of the Act of 1994, as per Carney J. in DPP v Curry [2002] 3 IR 131. However, lest

there should be any doubt about it, its incorporation into statute law would, in my opinion, be

desirable,

(c) the practice of waiting twenty minutes before commencing the cycle,

(d) the self diagnostic tools within both machines, to include the other tolerance levels previously

discussed, as well as the two simulator checks in every cycle. According to the evidence the

machines are so programmed, that, on error or malfunction, the apparatus will abort, and

(e) the significant assurance offered by Messrs Blyth and Cunliff, Professor Jones and Ms. Leavy,

being underpinned by this evidence, as to result accuracy in the machines as they apply to every

affected person.

In addition to the above there is one further safeguard which I consider of particular relevance. It is the

entitlement of an accused person to seek inspection rights of any machine used to provide a section 17(2)

certificate in respect of him. Given not only the legal force but also the practical consequences of the

presumption contained in section 21(1) of the 1994 Act, it is in my view, an important assurance for an

accused person to know of his right to have access to a judicial authority for the purposes of seeking

inspection facilities in respect of any given machine. When so deciding, the court in question must of course

comply with constitutional justice and fair procedures on any such application so made, as it must on the

hearing of the section 49 charge itself. In both instances it may vindicate such rights of the defendant in the

most appropriate manner available. These observations equally apply to any application in respect of

documentation.

In addition of course all to the other requirements to ground a successful conviction must be put in place by

the prosecution.

Finally, though I have I think rightly emphasised the effect of section 21(1) of the Act of 1994, nonetheless it is

important to point out that the presumption in question is rebuttable and that one cannot accurately say that

the provision amounts to an automatic conviction or a conviction by print out. In fact, I do not believe that

Geoghegan J. in Whelan ever so concluded. On the contrary, the learned judge specifically points out that it is

a rebuttable presumption only, a view which is enforced by a reference to a fuller extract from his judgment

than that part which is referred to at para. 95 above. In its totality it reads "it can be argued that with some

validity that apart from cases with very unusual facts the presumptions arising from the certificates in the

Intoximeter cases are for all practical purposes irrebuttable notwithstanding the statutory provision to the

contrary if there are no circumstances where an accused can be permitted through an independent inspector of

his own to investigate the reliability of the apparatus or at the very least if it is not genuinely known in what

circumstances (if any) such apparatus can be unreliable

In conclusion, whilst noting that the Act of 1994 carries with it the presumption of constitutionality it is my

considered opinion that there is no real prospect of an injustice or of an unfair trial in respect of the charges

still pending against the plaintiffs”

Decision

The learned trial judge heard evidence from two experts tendered on behalf of the plaintiff, namely, Dr Deane, who has a

science degree in chemistry and a PhD in physio-analytical chemistry, and Mr Christopher Cuffe, a mechanical engineer,

who has a Masters in industrial engineering from University College Dublin and a post-graduate certificate in Advanced

Material Science from the University of Surrey. The latter had considerable experience of both inspecting, testing and

reporting on the Intoxilyzer / Intoximeter apparatus. He had been retained in about forty different law cases involving a

variety of challenges to the underlying legislation.

The defendants in turn put forward their own experts, including Mr Blyth, who is the head of calibration at the company

which manufactures the Lion Intoxilyzer and who explained its working operations, including its design and use parameters.

He was followed by Mr Paul Cunliff who is the general manager of Intoximeters UK Limited, which is the manufacturer of

the apparatus used in the case of Mr Purcell. The defendants also called in evidence Professor Alan Jones who in 1985 was

appointed by the Swedish Government as head of the Alcohol Toxicology section of the Swedish National Laboratory of

Forensic Chemistry in Linkoping. He has published widely on his specialised subject, namely forensic aspects of alcohol and

other drugs of abuse. Against a background of extensive research and his own experience, he commented on both breath-

testing machines and concluded that the system in operation in this country was "inherently reliable".

Finally, Ms Leavy, who is the chief analyst with the Medical Bureau of Road Safety, was called and gave evidence to

explain the safeguards which are in place to ensure the accuracy of the apparatus. The learned trial judge reviewed and

analysed the evidence of these various witnesses at considerable length in his judgment and concluded that the evidence

offered on behalf of the defendants was to be preferred. At par. 88 of his judgment, the learned trial judge stated:-

"I believe that, overall, the defence evidence was particularly strong and that the contrary offered on behalf of

the plaintiffs failed to have any significant impact on the core basis of that evidence. Accordingly, this

conclusion means that in my opinion the plaintiffs have failed to demonstrate that the apparatus in question is

in any way flawed or incapable with complying with design standards. Accordingly, I believe that, in the light

of the evidence as tendered in this particular case, I can only conclude that the results of both specimen 1 and

specimen 2, of all the plaintiffs, are an accurate and reliable reflection of the level of concentration of alcohol

in each person's breath at the time that the samples were given."

During the hearing of this appeal, no real challenge was offered to the factual findings made by the learned trial judge. Mr

Hogan, senior counsel for the appellants, focussed his challenge on the contention that, as technical reasons preclude the

splitting of a breath sample, the requirements of fair procedures can only be fulfilled if a person arrested for drunk driving is

given the contemporaneous right to have a blood or urine sample so that he can have a meaningful opportunity of defending

himself at trial. The absence of such a provision from the scheme of the Act of 1994, he argued, meant that the statutory

procedures encroached to a disproportionate degree on the appellants' rights in this respect.

Mr Hogan pointed to different provision contained in the Road Traffic Act, 1988 in the United Kingdom, and in particular s.

8 thereof which provides:-

"(1) Subject to subsection (2) below, of any two specimens of breath provided by any person in pursuance of

section 7 of this Act that with the lower proportion of alcohol in the breath shall be used and the others shall

be disregarded

(2) If the specimen with the lower proportion of alcohol contains no more than 50 microgrammes of alcohol in

100 millilitres of breath, the person who provided it may claim that it should be replaced by such specimen as

may be required under section 7(4) of this Act and, if he then provides such a specimen, neither specimen of

breath shall be used."

The specimen to be provided under s. 7(4) is, of course, a specimen of blood or urine.

Mr Hogan offered this U.K. provision as an example of how the legislation in this jurisdiction might have been drafted to as

to comply with the requirements of fair procedures. He also cited the following passage from the judgment of Stanley

Burton J in Richardson v Director of Public Prosecution [2003] EWHC 359 (Admin):-

"The purpose of section 8(2) of the Road Traffic Act 1988 manifestly is to provide an accused person with the

safeguard of a blood or urine sample in circumstances where it is considered that the proportion of alcohol in

the breath is low enough to permit of a reasonable possibility of error. It is to be inferred, in my judgment,

from section 8(2) that Parliament considered that where an approved device recorded a proportion of alcohol

of more than 50 microgrammes of alcohol in 100 millilitres of breath, there was no reasonable requirement

for some other form of sample.

Mr Hogan noted that a similar facility was available in the New Zealand legislation when the reading is in the range of 40 ug

- 60 ug. Under either of those regimes Mr McGonnell would have had a statutory right either to a blood or urine test. He

further argued that once the entitlement to give a blood or urine specimen in addition to or as an alternative to a breath test

was acknowledged, there was no reason to confine it to the lower alcohol levels and that the entitlement should be present in

every case.

Mr Hogan further relied upon the decision of a divisional court under the presidency of Finlay P. in The State (Walshe) v

Murphy [1981] IR 275 as an authority which supports the principle that an accused person must be afforded a fair

opportunity of challenging the prosecution case. Under s. 22(3) of the Road Traffic (Amendment) Act, 1978, the Medical

Bureau for Road Safety, having received and analysed a specimen of urine or blood and having determined the

concentration of alcohol within, is obliged to forward a completed certificate in prescribed form to the relevant gardai, and to

send a copy of that certificate to the person from whom the specimen has been taken. In Walshe, the applicant alleged that

he had never received a copy of such a certificate and, despite having made repeated requests to be furnished with it, was

charged with an offence under s. 49 of the Act of 1961 and had to face his criminal trial without a copy of such certificate.

In finding for the applicant, and in speaking for a unanimous court, Finlay P. stated (at 293 - 294):-

"I am satisfied that there is an obligation on the prosecuting authorities in a charge under section 49 of the

Road Traffic Act, 1961 where they become specifically aware that the person charged has not received a copy

of the certificate and requires one to supply him with one in such good time as to provide him with a realistic

opportunity to have the specimen which he has retained analysed and to contest the validity or correctness of

the certificate which was issued …

I accept the contention made on behalf of the prosecutor that this Court has no way of knowing whether a

specimen taken in August, 1979, would be capable of any accurate or probative analysis in May, 1981, and

that therefore there is fundamental want of fair procedures in the refusal or failure of the prosecuting

authorities to supply a copy of the certificate upon demand and request … On this ground alone even if all

other grounds urged on behalf of the prosecutor had failed, I would have been satisfied to disallow the cause

as shown."

The Court is of the view, however, that the learned trial judge correctly distinguished this case by reference to the statutory

context which obtained in that case and which was different to the scheme under consideration here. The scheme alluded to

in Walshe was one whereby the accused person was furnished with a split portion of the sample furnished, but could only

usefully analyse the split portion which he had retained by reference to the test results specified in the certificate. The Court

does not therefore feel that this case is of any particular assistance to the appellant.

Nor does the Court consider that the United Kingdom decision of the House of Lords in Cracknell v Willis [1988] AC 450,

otherwise known as the “two bishops” case, provides much in the way of assistance to the appellants either.

That case concerned an appeal from the refusal of magistrates to allow an accused to adduce evidence of the amount of

alcohol he had consumed with a view to showing that the machine might have been faulty, thus providing a defence.

In the course of his judgment, Lord Griffiths stated (at p. 467):-

"We all know that no machine is infallible and if, despite this knowledge, Parliament had intended that breath-

testing devices would be treated as virtually infallible, I would have expected such an intention to be expressed

in clear and direct language. I say virtually infallible because that is the effect of limiting a challenge to

"direct evidence of malfunction" which the motorist cannot, in practise, obtain, or a blood or urine test which

the police are entitled to refuse unless the reading is below 50 ug. Nowhere in the legislation can I find any

indication that Parliament intended such a result."

Lord Griffiths then continued with the passage which refers to the so called “two bishops” defence:-

"Suppose a teetotaller after dining with people of the highest repute, two bishops if you will, forgets to turn on

his lights and is stopped by the police…. [Following his arrest] he agrees to supply two specimens of breath

and the machine to his astonishment shows very high readings. He asks to be allowed to prove the machine

wrong by providing a blood or urine specimen. The police agree and he gives a blood specimen. An analysis

shows no alcohol in the specimen. It is virtually certain that the police would accept the analysis and he would

not be prosecuted. But if he were prosecuted it is equally certain that the magistrates would prefer the analysis

and he would be acquitted. But now suppose that the police refuse his request to supply a blood or urine

specimen because the reading on the machine was over 50 microgrammes. Is he to be convicted without the

opportunity of calling the two bishops as witnesses to the fact that he had drunk nothing that evening and

inviting the magistrates to draw the inference that the machine must have been unreliable. If he can invite the

magistrates to draw such an inference from the work of an analyst, why should he not invite them to draw the

inference from the word of the bishops?"

Building on the foundation of this decision, Mr Hogan suggested there was jurisprudence in this jurisdiction to similar effect,

notably the decision of this court in Whelan v Kirby [2005] 2 IR 30, where the court quashed convictions pursuant to s. 49

in circumstance where the applicants had been refused an opportunity to inspect the Intoximeter apparatus. As Geoghegan J.

put it at pp. 42 - 43:-

“I am satisfied that the applicant had an arguable case that an inspection was reasonable given the relevant

novelty of the machine in particular and the fact that for all practical purposes he could be convicted on the

say so of a printout. What the first respondent may have overlooked is that the printout gives rise only to a

rebuttable presumption …

The fact that the certificate is rebuttable has significance having regard to the decision of this court in Maher

v Attorney General [1973] IR 140. Originally in relation to prosecutions arising out of specimens of blood or

urine under the Road Traffic Act, 1968, the equivalent certificate gave rise to an irrebuttable presumption.

That provision was held to be unconstitutional by this court in Maher's case. The court held that the

administration of justice in a criminal trial was confined by the Constitution to the courts and judges

constituted and appointed in accordance with the provisions thereof and therefore that the essential

ingredients of the offence with which an accused was charged was necessarily reserved to such courts and

judges. Once the certificate was conclusive the judicial power of the District judge was infringed and this

could not be valid having regard to the Constitution. It can be argued with some validity that apart from cases

with very unusual facts the presumptions arising from the certificates in the intoximeter cases are for all

practical purposes irrebuttable notwithstanding the statutory provision to the contrary if there are no

circumstances where an accused can be permitted through an independent expert of his own to investigate the

reliability of the apparatus or at the very least if it is not generally known in what circumstances (if any) such

apparatus can be unreliable."

However as McKechnie J. pointed out in his judgment, it remains open to the appellants, as with any person accused of an

offence contrary to s. 49(4) of the Act of 1961, inter alia to adduce evidence of the amount of alcohol they had consumed,

in seeking to show that the relevant apparatus should be considered as having been defective. Furthermore, Geoghegan J. in

Whelan specifically pointed out that the presumption under the Act of 1994 is rebuttable and expressly acknowledged the

entitlement of an accused person to apply to conduct an inspection of the apparatus so as to investigate its reliability. An

accused person is further entitled to adduce evidence regarding the manner of operation of the apparatus at the relevant time

of the provision of the breath specimen. As McKechnie J. stated at para. 111 of his judgment:-

“In addition to the above there is one further safeguard which I consider of particular relevance. It is the

entitlement of an accused person to seek inspection rights of any machine used to provide a section 17(2)

certificate in respect of him. Given not only the legal force but also the practical consequences of the

presumption contained in section 21(1) of the 1994 act, it is in my view an important assurance for an

accused person to know of his right to have access to a judicial authority for the purpose of seeking inspection

facilities in respect of any given machine. When so deciding, the court in question must of course comply with

constitutional justice and fair procedures on any such application so made, as it must on the hearing of the

section 49 charge itself. In both instances it may vindicate such rights of the defendant in the most appropriate

manner available. The observations equally apply to any application in respect of documentation."

There are further reasons for concluding that a s. 17 statement should not be seen as tantamount to “conviction by

printout”. A statement under s. 17 relates to the scientific and technical analysis of alcohol in the breath, being but one of

the elements of an offence contrary to s. 49(4) of the Act of 1994. It must be borne in mind that there are various other

proofs which must be satisfied in any prosecution for an offence contrary to s. 49(4) of the Act of 1994 of which viva voce

evidence must be given, particularly where the admissibility of a s. 17 statement is challenged. For instance, the prosecution

must establish all of the following matters:-

(a) That the accused was the person driving or attempting to drive the vehicle.

(b) That what was being driven or was the subject of an attempt to drive was a mechanically propelled vehicle.

(c) That the driving or attempt occurred in a public place.

(d) The time of driving.

(e) That the accused was validly arrested.

(f) That a valid s. 13 requirement was made.

This court in Re. The Employment Equality Bill, 1996 [1997] 2 I.R. 321 stated (at p. 379)…

“Whereas viva voce evidence is the norm in the majority of cases, proof by written statement is allowed in

certain circumstances but with the consent of the accused, and, in other cases, certificates may provide prima

facie evidence of specific issues of a scientific or technical nature. Such limitation of viva voce evidence is

reasonable in circumstances where the nature of the evidence is, for example, technical and by its form

appropriate in a certificate, as such form means that, for example, many technicians and officials are not

required to be called into court in each case. A reasonable balance is obtained.”

Under the heading of “Due Process” the court went on to state at pp 382-383 of the report that:

“Proof by way of certification is an interference with the norm of a trial viva voce. A certificate is an

appropriate form of proof when it is proportionate to the ends to be achieved. It is a justifiable method of

proof when the process is, for example, of a technical nature and there are other issues before the court.”

These various interpretations by the courts over the years of the obligations and rights which may arise under different

statutory schemes satisfy the Court that a reasonable balance has been maintained in the Act of 1994 between the

requirement to enable the State to prosecute drunk driving cases effectively whilst at the same time preserving the right of an

accused to maintain a defense. The Court does not see the scheme as a disproportionate interference with the rights of an

accused. The test of proportionality, as described in Heaney v Ireland [1994] 3 I.R.593, may be stated as follows. The

objective of the impugned provision must be of sufficient importance to warrant over-riding a constitutionally protected

right, and must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a

proportionality test. They must: (a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational

considerations; (b) they must impair the right as little as possible, and (c) must be such that their effect on the right was

proportionate to the objective.

While Mr. Hogan sought in this context to rely on the decision of this court in DK v Crowley [2002] 2 IR 744, that case

concerned the constitutional validity of barring orders which were unlimited in time and made ex parte which had the effect

of forcibly removing the applicant from the family home without even being heard in his own defense. No such draconian

provisions are present in the scheme under consideration here. Furthermore there can be no doubt but that the requirement

to curtail, limit and prosecute cases of drunk driving on our roads in the interest of reducing deaths and injuries must be

given a high degree of priority in a free and democratic society. The Court is therefore satisfied that the procedures provided

for by the Act of 1994 do not offend against the principle of proportionality.

Some considerable time was taken in the court below in considering whether or not a breach of fair procedures could be

taken as having occurred by reason of the non-availability of evidence which might afford an accused a reasonable

opportunity of rebutting the prosecution case against him. These propositions were, of course, first established in the

judgment of Lynch J. in Murphy v D.P.P. [1989] I.L.R.M. 71 and have been further elaborated since in cases such as

Dunne v D.P.P. [2002] 2 I.R. 305, Braddish v D.P.P. [2001] 3 I.R. 127, Bowes v D.P.P. [2003] 2 I.R. 25 and McFarlane

v D.P.P. (unreported, Supreme Court, 7 March 2006). In the view of the Court these cases do not really offer much in the

way of assistance in the matter under consideration, principally because a breath sample is incapable of either being

preserved or split in such a way as to permit independent analysis. These cases are of value only insofar as they underline

the importance of ensuring constitutional fairness at every stage of the criminal process. The Court is satisfied that there is

no basis for disturbing the findings of the learned High Court judge which means in effect that the internal mechanisms and

safeguards associated with the intoxilyzer apparatus and its readings are such as to provide reassurance of the most empathic

nature of the accuracy of the results produced by the Medical Bureau. In the view of this Court it can not be any part of the

State’s obligation as an element of fair procedures, when highly efficient technology is available to it, to provide some

corresponding means or technology to an accused whereby he or she can seek to carry out his or her own tests. That would

be an absurd application of any ‘equality of arms’ doctrine.

For much the same reasons, the Court is also of the view that the decision of the Supreme Court of the United States in

California v Trombetta [1984] 467 U.S. 479 does not really speak to the facts of the present case. In that case the Supreme

Court had to consider whether the due process clause of the Fourteenth Amendment to the U.S. Constitution requires that

law enforcement agencies preserve breath samples of persons who had submitted to intoxilyzer tests in order to introduce

the results of breath analysis tests at trial. The crucial difference in Trombetta lies in the fact that it was technically feasible

to preserve samples of breath, although the arresting officers, as was their ordinary practice, did not do so. The whole case

turned on the question whether or not due process demanded that the arresting officers preserve the breath samples in those

circumstances. Given that the court ultimately found that the authorities did not destroy the breath samples in a calculated

effort to circumvent due process but, on the contrary, were acting in good faith and in accordance with the normal practice,

it may be seen that the factual template is quite different from that under consideration here.

In all the circumstances, in particular the conclusion that the statutory procedures for the measuring and proving of breath /

alcohol levels are not disproportionate or an impermissible interference with an accused’s right to a fair trial, the Court

dismisses the appeal.