High Court holds refusal to provide breath specimen is offence even if machine preparation steps were not completed.

Neutral Citation Number: [2007] IEHC 353

THE HIGH COURT

Record No. [2007/676SS

BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

SEAN MALONE

RESPONDENT

JUDGMENT of Mr. Justice Hedigan delivered on the 15th day of October, 2007

This is a consultative case stated by Catherine Murphy, a Judge of the District Court. The district judge stated as follows:

"This is a consultative case stated by me, Catherine Murphy, a Judge of the District Court assigned to the Dublin

Metropolitan District, sitting at Court 52 at the Richmond Hospital, pursuant to the provisions of section 52 of the Courts

(Supplemental Provisions) Act, 1961.

1. At a sitting of the District Court held at Court 52, Richmond Hospital, North Brunswick Street, Dublin 7 on 19th October 2006. Sean

Malone, the accused herein (hereinafter referred to as “the accused') appeared before me to answer a complaint the subject matter

of a summons served upon him in which he was charged with the following offence, to wit, that, on 20 April 2006 at Terenure Garda

Station in said District Court area of Dublin Metropolitan District, being a person arrested under section 49(8) of the Road Traffic Act,

1961, having been required by Fiona M. O'Connell, a member of the Garda Síochána, at Terenure Garda Station pursuant to section

13(1)(a) of the Road Traffic Act, 1994, to provide two specimens of your breath, did refuse to comply forthwith with the said

requirement contrary to section 13(2) of the Road Traffic Act, 1994, as amended by section 23 of the Road Traffic Act, 2002.

A copy of the charge sheet, which forms part of this case stated, is attached at Schedule 1.

2. At the said hearing the Director of Public Prosecutions was represented by Ms. Catherine Irvine Prosecution Solicitor in the Office

of the Chief Prosecution Solicitor, Chapter House, 26/30, Upper Abbey Street, Dublin 1. Ms Rita O'Meara, Barrister-at-Law,

represented the accused, instructed By Kelly Noone & Co., Solicitors, of Taney Hall, Eglinton Terrace, Dundrum, Dublin 14.

3. And on the l9th October 2006 after hearing the evidence adduced by and on behalf of the complainant and following submissions

made on behalf of the accused and by and on behalf of the complainant, the undersigned, being a Judge of the District Court

assigned to said District and sitting as a Court of Summary Jurisdiction at Court 52, the Richmond Hospital, North Brunswick Street,

Dublin 7 and having neither proceeded to a final adjudication of the said complaint nor decided certain questions of law arising herein,

do hereby refer such questions of law to the High Court for determination.

5. I adjourned the said complaint to the day of the sitting of the District Court next after the expiration of fourteen days from the day

upon which the decision of the High Court shall be given. Wherefore I, the Judge aforesaid, in pursuance of the Statutes in such case

made and provided do hereby state and sign the following Case for the opinion of the High Court. Relevant facts as given in evidence

by prosecution witnesses.

6. Garda Fiona O'Connell gave evidence of having observed the accused driving on Templeogue Road at 11.35 p.m. on the 19th April

2006. As a result of her observation she stopped the accused and, following a conversation with him, she formed the opinion that he

was in breach of section 49(1),(2),(3) or (4) of the Road Traffic Act, 1961-1995. The accused was arrested pursuant to section

49(8) of the said Act. The accused was conveyed to Terenure Garda Station, arriving at 11.50p.m. The witness gave evidence that

while in the Garda station the accused asked for a pen and paper to write down what was being said but that this request was

declined. The witness gave evidence that she was fully trained in the operation of the Lion lntoxilyser 6000IRL. The accused was

observed for twenty minutes from 11.50 p.m. to 12.10 a.m. and during this time he did not eat, drink or smoke. At 12.10 Garda

O'Connell gave evidence that she asked the Accused to accompany her to the Intoxilyser room on numerous occasions. The Accused

refused to do so. At 12.23 am the Accused did accompany Garda O'Connell to the Intoxilyser room. Garda Paul O'Hanlon was also

present.

7. The witness gave evidence of noting the temperature and the humidity in the Intoxilyser Room. The witness explained the workings

of the lntoxilyser to the accused and made the legal requirement of the accused in ordinary language as follows:

“I am of the opinion that you have consumed an intoxicant. Therefore pursuant to section 13(l)(a) of the Road Traffic Act

1994 l 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 or failure or

refusal to comply with my requirement in the manner outlined by me is a specific offence under section 13(2) of the Road

Traffic Act 1994. Penalty on summary conviction liable to a fine not exceeding 2,500 euro's, or to imprisonment for a term

not exceeding 6 months or to both. On summary conviction you will be disqualified from driving for a period of up to two

years for failure or refusal to comply with my requirement”.

She then asked the accused if he understood and he replied, “No, I don't understand”. The witness asked the accused what he did

not understand and he replied that he “did not understand any of it”. The witness explained the requirement two more times in plain

simple English and each time the accused replied, “No, I don't understand”. At 12.29 a.m. the accused was returned to the interview

room and was subsequently charged on charge sheet number 488540. Under cross-examination the witness stated that the

Intoxilyser machine was always switched on. The witness stated that she did not take any steps to input her identification details or

the details of the accused into the Intoxilyser machine; neither did she take any steps to initiate the automatic process whereby the

machine self-checks/purges itself prior to being ready to accept a breath sample. The witness did not handle a mouthpiece or in any

way attach it to the machine. She further stated that at no time while in the Intoxilyser Room with the accused did she even touch

the Intoxilyser machine. The witness stated that at no time did she offer the mouthpiece to the accused with the request that he

blow into the apparatus. In response to questioning by Counsel for the accused the witness stated that after the accused was

returned to the interview room no further attempt was made to obtain a breath sample from the accused.

8. The witness did not enter into evidence a printout from the Intoxilyser machine.

9. Sergeant Mervyn Rice gave evidence of being the member in charge of Terenure Garda Station on the 19th April 2006 when, at

11.50 p.m. Garda Fiona O'Connell arrived with the accused in custody. Details of the accused were entered into the custody record.

Evidence was given that the Notice of Rights was read over to the accused and explained to him in ordinary language; however the

accused stated that he did not understand the Notice of Rights. Sergeant Rice gave evidence that he read over the notice of rights

three times in simple English. The accused did not sign the acknowledgement of receipt of Notice of Rights. Sergeant Rice told the

court that the Accused refused to go to the Intoxilyser room at 12.l0 a.m.. The witness gave evidence that at12.14 a.m. the

accused requested that he be allowed to phone his solicitor. The accused did not know the telephone number of his solicitor but said

that the number was listed in his mobile phone. The phone was in his car. Evidence was given that the accused was not permitted to

go out to his car to retrieve the phone. The Sergeant gave further evidence that the accused requested that a Garda bring him the

phone from his car but the Sergeant would not permit a Garda to enter the car for the purpose of removing the phone. The Accused

was given immediate access to the telephone book and could not locate his Solicitor. The Accused was asked if he wished to contact

another Solicitor. He replied he did not wish to do so. The accused did not contact any solicitor while in custody. The accused went

to the Intoxilyser room at 12.23 a.m. Sergeant Rice did not go into the Intoxilyser room. At 12.30 a.m. the accused was returned to

the interview room and at 1:00 a.m. The accused was charged on charge sheet 488540.

10. Garda Paul O'Hanlon gave evidence of being present in the Intoxilyser Room with Garda O'Connell and the accused. The witness

initially gave evidence that the accused had refused to provide a breath sample. However, on cross-examination, he stated that

when the accused was asked if he was willing to comply, the accused had replied "I don't understand”. The witness clarified that at

no time did the accused refuse to provide a breath sample. Contentions of the accused.

11. It was contended for on behalf of the accused that:

(a) The prosecuting/Intoxilyser Garda was responsible for advancing the Intoxilyser procedure to the point where the

accused could comply with the request to provide a breath sample. At no time was the accused given the opportunity to

comply. The offence arises when there is a failure to provide a sample “forthwith”. At no time could a sample be given as

the necessary procedure in respect of the Intoxilyser machine had not been initiated by the prosecuting/Intoxilyser Garda.

The offence cannot be committed before an accused is in a position to provide a breath sample “forthwith”.

(b) There is no evidence before the court that the accused refused to provide a breath sample.

(c) There is no statutory requirement for the prosecuting Garda to be satisfied that the accused understands the process

or the requirement before being presented with the mouthpiece.

(d) There was no printout stating “specimen incomplete”submitted to the Court; this would have been generated if the

machine was properly set up to receive a breath sample.

For the foregoing reasons Counsel for the defence submitted that the summons ought to be dismissed.

Contentions of the prosecution

12. It was contended for by the solicitor for the prosecution in reply that:

(A) Once the requirement is made of the Accused the onus shifts to him to comply with is clear from the facts outlined

and the evidence adduced that the behaviour of the Accused constituted a refusal.

(B) There is ample evidence before the court that the accused was refusing to give a specimen.

(C) The prosecution does not have to prove that the accused understood the requirement.

(D) The section 17 printout is not a necessary proof in circumstances involving a refusal to provide a breath specimen.

13. AND WHEREAS I, the said Judge, am of opinion that questions of law arise in the foregoing case and do hereby refer the said

questions to the High Court for determination;

QUESTIONS

(1) Whether, in circumstances where the Intoxilyser Garda had taken no steps to activate and prepare the Intoxilyser machine to

accept a breath specimen, can the accused have been at any time in a position to provide a breath sample “forthwith” as required by

section 13 of the Road Traffic Act, 1994?

(2) If the answer to the above question is No, does any offence under section 13 of the Road Traffic Act, 1994 arise?

(3) Whether the Court can proceed, in the absence of a computer printout stating “specimen incomplete”, to convict the accused of

an offence pursuant-to section.

(4) Where the answer to the above question is No, is the said printout an essential proof in respect of a charge pursuant to section

13?

(5) Whether the relevant legislation requires the prosecuting Garda to be satisfied that the accused understands the statutory

requirement before proceeding to offer the accused the Intoxilyser mouthpiece?

(6) Whether obstructive or unreasonable behaviour on the part of the Accused can constitute a refusal for the purposes of section 13

of the Road Traffic Act of 1994?

Dated this 18th day of May 2007

Signed:

Catherine Murphy

Judge of the District Court

Assigned to the Dublin Metropolitan District

In summary, of the facts; the Accused in this case, Sean Malone, when brought to the Garda Station and required at 12.10 to go to

the Intoxilyser room, refused to do so. He refused subsequently on numerous occasions but finally did so at 12:23. In response to the

Section 13(1)(a) requirement and as to whether he understood, he stated three times "no, I don't understand" and once "I do not

understand any of it". He was subsequently charged, as the relevant charge sheet shows, with refusing to comply "forthwith" with

the requirement.

The point in issue upon which an answer is sought is a net one. Does the requesting Garda have to go through all the preparatory

steps as set out in Mr. De Blacams' book, that is steps 1 to 11, before a valid request may ground a charge of a refusal? It is agreed

that in reality only questions one and two in the case stated arise. Those questions are firstly, Whether in circumstances where the

Intoxilyser Garda had taken no steps to activate and prepare the Intoxilyser machine to accept a breath specimen, can the Accused

have been at any time in a position to provide a breath sample "forthwith" as required by Section 13 of the Road Traffic Act, 1994

and secondly as to whether in the event this is not so any offence under Section 13 arises?

Question one, as Miss McDonagh submits, could perhaps be better formulated because the word "forthwith" seems clearly to be linked

to a failure rather than a refusal to comply. So the question perhaps more properly should be "in a prosecution under Section 13(2)

where the Accused is found to have refused, is it a necessary proof that the Gardaí have gone through all of the preparatory steps

up to where the display on the Lion Intoxilyser 6000IRL showed the message 'give breath specimen, blow to fill space'?". I do not think

that it is. Where a Court comes to the conclusion that on the evidence the accused had refused to comply with a requirement under

subsection 1(a), it would be overly formalistic, in my view, for the Gardaí to proceed through the first 11 steps and present the

Intoxilyser to the accused where it had become clear he was not going to comply. While no such finding has yet been made in this

case, because this is a consultative case stated and the case has not concluded, there seems nonetheless ample evidence upon

which the District Judge could make the finding that the Accused by his behaviour was refusing to comply. If that is the District

Judge's finding then the fact the above 11 plus steps were not taken is in my view irrelevant.

In the result question two, which is as to whether an offence under Section 13 of the Road Traffic Act, 1994 arises, the answer is

yes it does.

Questions three and four no longer arise.

Questions five and six it seems to me, as was indicated by Counsel before me, are really matters for the District Judge to decide. If

she is satisfied that his behaviour was obstructive or unreasonable this can constitute a refusal. It is a matter to be decided on the

evidence.

I will make an order remitting the case back to the District Court.