Supreme Court rules s.17 Certificate invalid when machine ignores lower incomplete breath sample due to lack of due process.

THE SUPREME COURT

[Appeal No: 173/2006]

Denham J.

Macken J.

Finnegan J.

Between/

The Director of Public Prosecutions

Prosecutor

and

Frank McDonagh

Accused

Judgment delivered the 16th day of October, 2008 by Denham J.

1. Case Stated

This is a consultative case stated from Her Honour Judge Doirbhile Flanagan, Judge of the Circuit Court, of the Dublin Circuit, dated

the 28th April, 2006, seeking the determination of the Court on two questions.

2. The opinion of the Court is sought on the following:-

(i) On the evidence adduced am I entitled to hold that pursuant to section 13(1)(a) of the Road Traffic Act, 1994, there is no

bar on a member of An Garda Síochána making a requirement under section 13(1)(a) of the Road Traffic Act, 1994 of an

arrested person to provide two specimens of their breath, notwithstanding the provision by that arrested person of one

incomplete breath specimen within a previous incomplete test result;

(ii) Whether, in the circumstances of this case, the section 17 Certificate was admissible in evidence against the accused.

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

"(a) (i) Garda Martha Cleary was a member of An Garda Síochána, stationed at Dun Laoghaire Garda station. On the 9th

February 2002, she took up duty at 14.00p.m. working the 14.00p.m.-22.00 p.m. shift. She was an observer in the official patrol

car accompanied by Garda Mark Russell. At approximately 20.30 p.m. as a result of a call, she was made aware that a motor

vehicle, registration number 02 D 5657 was allegedly being driven in a dangerous manner. She observed the vehicle 02 D 5657

on Coliemore Road, Dalkey, which is a public place, driving slowly in a bid to come to a halt on Coliemore Road. The vehicle

came to a halt in the centre of the road. She spoke to the driver who gave his name and address as Frank McDonagh, 7,

Avondale Road, Killiney, County Dublin and a date of birth of the 5th of February 1957.

(ii) Garda Cleary stated that, on speaking to the driver, she noticed a strong odour of intoxicating liquor coming from Mr

McDonagh whose eyes were also bloodshot. She stated that he appeared to be slumped over in a drowsy manner. His radio was

also switched on to its maximum volume and she asked Mr McDonagh to turn off the radio, which he did. She asked Mr

McDonagh where he was coming from and his reply was that he had driven from the Forty Foot Bar in Dun Laoghaire. She asked

Mr McDonagh whether he had been drinking, he replied "red wine with his friend";

(iii) Garda Martha Cleary stated that she formed the opinion that Frank McDonagh was incapable of having proper control of a

mechanically propelled vehicle in a public place due to the consumption of an intoxicant and had subsequently committed an

offence, contrary to Section 49(1), (2), (3) or (4) of the Road Traffic Act, 1961/1994. She stated that she informed Mr

McDonagh of her opinion. Garda Martha Cleary arrested Mr McDonagh at 21.00 p.m. on the 9th of February 2002 pursuant to

the provisions of Section 49(8) of the Road Traffic Act, 1961 in the presence of Garda Mark Russell for an offence contrary to

Section 49(1), (2), (3) or (4) of the Road Traffic Act, 1961/1994. She cautioned Mr McDonagh as follows:-

"You are not obliged to say anything unless you wish to do so, but whatever you do say, will be taken down in writing and

may be given in evidence."

Mr McDonagh made no reply after caution. She then explained, in ordinary language to Mr McDonagh, that she was arresting

him for drunken driving.

(iv) Garda Martha Cleary then conveyed Mr McDonagh to Dun Laoghaire Garda Station along with Garda Mark Russell where they

arrived at 21.15 p.m. She introduced Frank McDonagh to the Member in Charge, Garda John Cashman and was present when Mr

McDonagh's details were entered into the custody record and when he was handed Form C72S, Notice of Rights.

(v) She stated that at 21.20 p.m. she took Frank McDonagh to an interview room for the purpose of carrying out an evidential

breath test. In the interview room, she explained to Mr McDonagh that he was to undergo a period of observation for 20

minutes which was for the purpose of the evidential breath test. She stated that during this time Mr McDonagh consumed nil by

mouth. She explained that if a person consumed something during this time, it may effect the operation of the apparatus which

was a machine designed to conduct a breath test.

(vi) Garda Martha Cleary later informed Mr McDonagh that they were going to move from the interview room to the doctor's

room for the purpose of conducting the evidential breath test. She stated that Mr McDonagh was under the influence of an

intoxicant and it took her some minutes to get him to understand that they had to move from one room to another. At 21.50

p.m. she took Mr McDonagh to the doctor's room for the purpose of conducting an evidential breath test along with student

Garda John Hubbard who was present with Mr McDonagh's consent.

(vii) Garda Cleary entered Mr McDonagh's details into the intoxilyzer apparatus. She noted the temperature and humidity as 23°

and 63% respectively. At approximately 21.47 p.m. she made a requirement of Mr McDonagh, having informed him that she was

of the opinion that he had consumed an intoxicant. She made a requirement under Section 13(1)(a) of the Road Traffic Act,

1994 for Mr McDonagh to provide two specimens of his breath by exhaling into the apparatus designed for determining the

concentration of alcohol in the breath. She stated that a failure or refusal to comply with her requirement or failure or refusal to

comply with her requirement in the manner outlined by her was a specific offence under Section 13(2) of the Road Traffic Act,

1994. She explained, that penalty on summary conviction would mean that he would be liable to a fine not exceeding £1,000 or

a term of imprisonment not exceeding six months or to both. She stated that she outlined to Mr McDonagh the manner in which

he was to exhale, that was that he should exhale in a slow, steady and continuous manner until she told him to stop. She

displayed a new mouthpiece in a sealed transparent bag, which she showed to Mr McDonagh in its unused state. She stated

that the tube of the intoxilyzer was warm to the touch. She attached the mouthpiece to the intoxilyzer.

(viii) Garda Martha Cleary stated that Frank McDonagh attempted to complete the intoxilyzer test as outlined by her. She

stated the test returned as incomplete at 21.54 p.m. on test number 356400865 (a copy of this test was attached to and

formed part of the Case Stated).

(ix) Garda Cleary then re-entered Frank McDonagh's details into the apparatus. She reminded him of the provisions of Section

13(1)(a) and removed the mouthpiece from the intoxilyzer. She displayed a second clean mouthpiece. Again, she outlined the

manner in which Mr McDonagh was to exhale by sealing his mouth over the mouthpiece and blowing in a steady, slow and

continuous manner until she indicated to him to stop. Mr McDonagh attempted to complete the test. The test returned

incomplete on test number 356400866. (A copy of this test was attached to and formed part of the Case Stated).

(x) Garda Cleary re-entered for the third time Frank McDonagh's details into the intoxilyzer. She removed the old mouthpiece

and displayed a new mouthpiece in its unused state to Frank McDonagh which she attached to the blowing tube. She again

reminded Frank McDonagh of the requirement under Section 13(1)(a) of the Road Traffic Act, 1994. Garda Cleary explained to

Mr McDonagh to seal his mouth around the mouthpiece and to slowly and steadily exhale into the mouthpiece until such time as

she indicated to him to stop. The third test was complete on test number 356400867. The intoxilyzer machine printed two

identical statements, both of which were signed by Garda Cleary who then required Frank McDonagh, under Section 17(4) of

the Road Traffic Act, 1994 to sign both statements. She outlined the penalties to him for failing to sign the statements. Mr

McDonagh signed both statements and returned both of them to Garda Cleary. (A copy of the Section 17 Certificate bearing

test number 356400867 was attached to and formed part of the Case Stated).

(xi) At 22.25 p.m. Garda Cleary and Frank McDonagh exited the room and Mr McDonagh was returned to the public office. At

22.35 p.m. Mr McDonagh was charged by Sergeant Timothy Walsh, as set out in Charge Sheet 39137. Mr McDonagh was

cautioned, to which he made no reply and he was handed a true copy of the Charge Sheet. Mr McDonagh was released on

station bail to appear before Dun Laoghaire District Court at 10.30 a.m. on the 11th February 2002. Mr. McDonagh exited Dun

Laoghaire Garda Station at 22.45 p.m.

(xii) There was no evidence that Garda Cleary had informed Mr McDonagh that she required both specimens of breath to be

provided on the one operating cycle of the intoxilyzer. No evidence was adduced to the effect that Mr McDonagh was in any

way attempting to avoid providing two breath specimens or frustrate the Garda in any way.

(b) Garda Martha Cleary was cross examined by Counsel on behalf of the Appellant. She confirmed that at 21.59 p.m. Mr

McDonagh provided a specimen of breath which on analysis gave a reading of 88 micrograms of alcohol per 100ml of breath. The

second specimen was incomplete. The test returned incomplete on test number 356400866. Garda Cleary confirmed that she

was not relying on this specimen.

She confirmed that at 22.13 p.m. on test number 356400867, Mr McDonagh provided his first specimen of breath which, on

analysis, contained a concentration of alcohol of 88 micrograms of alcohol per 100ml of breath. She confirmed that at 22.16 pm

on test number 356400867 he provided a second specimen of his breath which, on analysis, contained a concentration of 87

micrograms of alcohol per 100ml of breath. The result of the completed test was 71 micrograms of alcohol per 100ml of breath.

The section 17 statement was handed in to Court. The prosecution accepted that the last test was the only complete test and

the result being relied upon by the prosecution."

4. At the end of the prosecution case counsel for the appellant applied for a direction on the grounds that the section 17 Certificate

relied upon by the prosecution was inadmissible in evidence and that accordingly the prosecution case should fail.

5. Submissions were made by counsel to the learned trial judge. The case was adjourned from time to time. On the 16th March, 2005

the learned trial judge indicated her intention to rule that the section 17 Certificate was admissible. Counsel for the appellant then

requested this consultative case stated for this Court.

6. Law

The questions for determination arise on s.13 of the Road Traffic Act, 1994, which states as follows:-

"13.—(1) 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—

(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."

The relevant portion of the section at issue in this case stated is s.13(1)(a).

Reference was made also to s.17(1) of the Road Traffic Act, 1994, which provides:-

"Where, consequent on a requirement under section 13 (1)(a) of him, a person provides 2 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."

7. Submissions

On behalf of the appellant it was submitted that the appellant was required to provide a third specimen of his breath and that there

was no power conferred on a member of An Garda Síochána to require a person in the situation to provide a third specimen. Two

specimens of breath were all that an arrested person could be required to provide. That s.13(1)(a) was a restriction of the appellant's

rights and should be construed strictly. If the third specimen was taken in breach of the appellant's right to bodily integrity then the

trial court had no discretion but had to rule that the section 17 Certificate was inadmissible.

On behalf of the prosecution it was submitted that there was a single requirement. Further it was submitted that had the appellant

been charged with failure to comply after the first attempt it would have been argued that he should have been given a further

attempt to comply with the requirement of the Garda.

8. Decision

As to the issue of whether more than one requirement was made, on the facts I am satisfied that Garda Cleary made a single

requirement of the appellant under s.13(1)(a) of the Road Traffic Act, 1994, to provide two specimens of his breath by exhaling into

the apparatus. Subsequently three attempts to provide the specimens were made, and it is this which gives rise to the questions in

issue.

9. Three attempts were made by the appellant to provide specimens. The first attempt returned a statement as "incomplete". This

was test number 356400865. There was no number beside specimen 1 and no further statement other than the word "incomplete". It

appears that no specimen was recorded on the intoxilyzer.

The Garda then gave the appellant a second clean mouthpiece and the appellant made a second attempt to complete the test. This

was test number 356400866. Having given details, such as the appellant's name and address, the analysis stated, of specimen, 1

"88". There was no number by the words "specimen 2", merely the letters "XXX", indicating that there was no second specimen. So,

the test was not completed. There were not two specimens.

Thus on these two attempts to provide specimens, no specimen was obtained on the first attempt, and only one specimen was

obtained on the second attempt, and both tests were marked as "incomplete".

The Garda allowed a third attempt. This option could be perceived as being to the benefit of the appellant as an alternative was that

the appellant be charged with an offence under s.13(2) of the Act of 1994. This subsection provides:-

"Subject to section 23, 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."

10. The intent of s.13(1)(a), expressed in the words of the subsection, is to require a person to provide by exhaling into an apparatus

for determining the concentration of alcohol in the breath, two specimens of his breath.

11. In summary, the appellant first attempted to provide breath specimens, but the test was incomplete. On the second attempt he

provided one specimen, but the test was returned incomplete. On the third attempt he succeeded in giving two specimens.

12. It is necessary that the specimen of breath is such that it can be measured. As Kearns J. said in D.P.P. v. Moorehouse [2006] 1

I.R. 421 at p.446:-

"I agree with the submission of counsel for the prosecutor 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, …"

In that case McCracken J. stated at p.436:-

"… the purpose of the requirement is to enable the Gardaí to determine the concentration of alcohol in a person’s breath. This is

the purpose for which the two specimens of breath are required. If a person exhales into the apparatus in a manner which does

not allow the concentration of alcohol to be determined, presumably because not a sufficient quantity of the person’s breath

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

While Murray C.J. was in dissent on the main issue in D.P.P. v. Moorehouse he analysed the Act at pp.431-432 as follows:-

"It is quite obvious from an examination of the Road Traffic Acts that one of their objects is to control and regulate the use of

mechanically propelled vehicles in public places. It is equally obvious that among the objects of the Acts in question is the

prohibition on driving a motor car by a person who has an excess of alcohol in his or her blood. To that end provision is made for

the arrest of drivers suspected of driving with an excess of alcohol and for the carrying out of tests, including breath tests, for

the purpose of establishing the level of alcohol in the driver’s blood. It is probably trite to say but it is within the objects of the

Act that persons who are obliged to provide a specimen of their breath should be subject to prosecution should they fail or

refuse to provide such samples including should they try to evade providing a sample in a manner which enables the authorities

to carry out an effective and reliable test."

13. The method of analysis of the specimens is that two specimens are analysed by the machine, and, as required by s.17 of the Act

of 1994, it takes the lower sample, and then makes a 17.5% deduction. This process was considered in D.P.P. v. Curry [2002] 3 I.R.

131. It is a process which gives benefits to an accused. For this process to work the machine requires two specimens in a single

cycle. It is from such a cycle that a section 17 Certificate may issue.

14. In this case on the second attempt a single specimen was recorded. The test was then marked "incomplete". On the third attempt

there were two specimens and a section 17 Certificate was issued on foot of these two samples.

15. The issue raised on behalf of the appellant is that the two relevant samples should be the single sample on the second attempt

and the first sample on the third attempt, and that it is only on those two specimens that any valid section 17 Certificate should

issue. It was argued that simply because the machine can not operate on such two samples does not mean that those two samples

are the two samples upon which the decision should be made.

16. Counsel on behalf of the appellant submitted the following scenario. An arrested person on one cycle provides one breath

specimen that was measured as containing a concentration of 41mgs of alcohol per 100mls of breath. If, as the appellant here, that

person was unable to provide a second specimen within the three minute cycle allowed then this test would be determined. If the

accused then provided two breath specimens within a subsequent same cycle, as did the appellant here, and the readings were

slightly higher (as can occur) and measured at 44mgs and 45mgs of alcohol per 100mls of breath respectively, once the 17.5%

reduction is made as is the usual method, to the lower of the two readings on the second cycle, the accused would find himself over

the legal limit of 35mgs of alcohol per 100mls of breath. If, however, the first specimen, on the first attempt, and the first specimen

on the second attempt were taken as the figures, and it was argued that they should, then a 17.5% deduction to the first specimen

provided (i.e. 41mgs) would place that person below the legal limit and so not liable for prosecution. It was submitted that the

disregarding of the actual first sample would be an injustice.

17. Even if the facts of the case were not such that the actual first and actual second specimen were not lower than the two

specimens in the second attempt, a flaw in the system, which is technical, has been identified.

18. Counsel submitted that when two breath specimens are successfully provided on the one operating cycle (as in the third attempt

of the appellant), the Lion Intoximeter automatically produces the final reading for the purpose of s.49(4) of the Road Traffic Act,

1961. In the appellant's case the final reading was 71mgs of alcohol per 100mls of breath. It was submitted that the fact that the

Lion Intoximeter calculates a final reading by a simple mathematical deduction of 17.5% from the lower of the two readings on the

sample cycle cannot in itself be sufficient reason for disregarding the actual first breath specimen provided. The calculation could be

done by a person, rather than the machine.

19. However, the machine is programmed, and can operate only on the two breath specimens in a single attempt. It is thus a matter

of convenience, for the machine.

20. However, the consequence of the machine operating on such samples is that a s.17 Certificate may be printed out.

21. Section 21(1) of the Road Traffic Act, 1994 provides a presumption in favour of a s.17 Certificate. This is to the advantage of the

prosecution. It is a policy decision by the Oireachtas to address the problem of drunken drivers.

22. Such legislation is penal and is required to be construed strictly. The appellant, and any accused, has the right not to incriminate

himself. But there are exceptions. As Finlay C.J. stated in Director of Public Prosecutions v. McGarrigle, [1996] 1 I.L.R.M. 271 at

p.273:-

"The obligation to give a specimen which may establish the committing of a serious offence is a significant though not unique

exception to the general principles of our criminal code which protect accused persons against involuntary self-incrimination."

23. This method of creating a s.17 Certificate should conform with due process. The process in this case is that, because of the

configuration of the machine, the machine does not analyse the actual first specimen (in the second attempt) and the actual second

specimen (the first breath on the third attempt). Rather, because of the way the machine is set, it works only if it records two

specimens in a single attempt. This is already a process in ease of the prosecution. It arises for social and community reasons, to

fight the scourge of drunk drivers. The process must be "due process", in accordance with constitutional rights. However, in effect

the process elects samples which may not be the first and second samples, and which may enable a prosecution when the actual first

and second samples would not.

24. Legislation creating such processes in ease of a prosecution are part and parcel of modern road traffic legislation. They signify a

social policy. However, they must be fair. A process which could produce a s.17 Certificate in a situation where the actual first and

second specimens would not warrant a s.17 Certificate is not due process. The Certificate in this case refers to the actual second

and third specimens given. The machine is not configured to give a certificate on foot of the actual first and second specimens in this

case.

25. I would answer the questions posed in the Case Stated in the negative. In this case there was one requirement made by the

garda to the appellant, under s.13(1)(a) of the Road Traffic Act, 1994, to provide two specimens of his breath. The appellant made

three attempts to blow into the intoxilyzer. On the first attempt no breath specimens were recorded. On the second attempt one

specimen only was obtained, and the test was not completed. On the third attempt the appellant provided two specimens. The

system operated by the machine requires two samples, the lower is chosen, and a 17.5% deduction taken from that. If three samples

are given in two cycles (as here) and the lower is in fact on the earlier cycle (the second attempt here) then the machine is not in

fact operating on the lowest sample.

This system is technical. The consequence from the machine's operation may be a s.17 Certificate. This may be very detrimental to

an accused. It is not an impenetrable process - the sums would be done on the readings given. However, the machine only issues the

s.17 Certificate on foot of two samples from the same attempt.

The injustice which may occur if the first sample is in fact below the limit, but is not considered, has been described in paragraph 16.

The right to due process requires a fair system. A system which may ignore a lower sample in favour of two subsequent higher

samples is not fair. Consequently, the manner of obtaining samples should reflect this situation. Thus, in this case the first attempt

failed to give any sample, and the second attempt was incomplete as only one specimen was given. In such a circumstance, there

may not be a third attempt if only the specimens on the third attempt are the basis for a s.17 Certificate.

Therefore, I conclude that the questions posed be answered in the negative.