Court holds failure to provide breath samples in specified manner is not an offence if samples are capable of measurement.

THE SUPREME COURT

Record No. 173/2006

Denham J.

Macken J.

Finnegan J.

IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT 1947

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA MARTHA CLEARY)

PROSECUTOR

and

FRANK McDONAGH

ACCUSED

Judgment of Mr Justice Finnegan delivered on the 16th day of October 2008

This is a Case Stated by a judge of the Circuit Court pursuant to section 16 of the Courts of Justice Act 1947 in which two questions

are asked of this court concerning the interpretation of section 13(1)(a) and (2) of the Road Traffic Act 1994. The accused was

charged that he did on the 9th February 2002 at Colliemore Road, Dalkey, Co. Dublin, in the Dublin Metropolitan District drive a

mechanically propelled vehicle registration no. 02 D 5657 in a public place while there was present in his body a quantity of alcohol

such that within three hours after so driving the concentration of alcohol in his breath exceeded a concentration of 35 micrograms of

alcohol per 100 millilitres of breath contrary to section 49(4) and 60(a) of the Road Traffic Act 1961 as inserted by section 10 of the

Road Traffic Act 1994.

The Case Stated

The Case Stated recites the appearances at the hearing before the Circuit Court, the circumstances leading to the arrest of the

accused and the proceedings at Dun Laoghaire Garda Station none of which are in issue. Relevant to the questions raised by the

learned Circuit Court judge and the issue before this court are the facts set out in the Case Stated as follows:-

1. “(3)(vii) Garda Cleary entered Mr McDonagh’s details into the intoxilyser apparatus. She noted the temperature and humidity

as 23% and 63 degrees 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 the 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 intoxilyser was warm to the touch. She attached the mouthpiece to the

intoxilyser.

(viii) Garda Martha Cleary stated that Frank McDonagh attempted to complete the intoxilyser 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 is attached to and forms

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 intoxilyser. 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 no. 356400866. (A copy of this test is attached to and forms part of this Case Stated).

(x) Garda Cleary re-entered for the third time Frank McDonagh’s details into the intoxilyser. 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 completed on test no. 356400867. The intoxilyser 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 statement. Mr

McDonagh signed both statements and returned both of them to Garda Cleary (A copy of the section 17 certificate bearing

test no. 356400867 is attached to and forms part of this Case Stated).

(xii) There is 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 intoxilyser. 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.”

Provisions of the Statute and Regulations

The relevant provisions of the Road Traffic Act 1994 are as follows:-

“Section 13(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 Siochána is of

opinion that the person has consumed an intoxicant, a member of the Garda Siochána may, at a Garda Siochána 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) (Not relevant).

(2) Subject to section 23, a person who refuses or fails to comply forthwith with the requirement under section (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 both.

(3) Subject to section 23, a person who, following a requirement under subsection (1)(b):

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

(b) (not relevant).

(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 Siochána 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.”

“17(1) 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 –

(c) 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 section 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 Siochána 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.

(21)(1) 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 Siochána 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.

23(1) In a prosecution of a person for an offence under section 13 for refusing or failing to comply with a requirement to

provide 2 specimens of his breath, it shall be a defence for the defendant to satisfy the court that there was a special and

substantial reason for his refusal or failure and that, as soon as practicable after the refusal or failure concerned, he complied

(or offered, but was not called upon, to comply) with a requirement under the section concerned in relation to the taking of a

specimen of blood or the provision of a specimen of urine.”

The Road Traffic Act 1994 section 3(1) provides for the making of regulations. The Road Traffic Act 1994 (Section 17) Regulations

1999 S.I. No. 326 of 1999 in regulation 4 provides as follows:-

“The statements to be produced pursuant to section 17 of the Act of 1994, shall be in the form set out in the Schedule to

these regulations.”

The Schedule to the Regulations sets out the prescribed form in the following terms:-

“Road Traffic Act 1994 section 17 – statement.

Apparatus:

Serial No.:

Garda Siochána Station:

Test Number:

Date of start of test:

Person who provided specimens

Name:

Address:

Analysis

Test ug/100ml Time

Blank

Simulator check 1

Blank

Breath specimen 1

Blank

Breath specimen 2

Blank

Simulator check 2.”

The specimen to be taken into account for the purposes of section ..... of the Road Traffic Act 1961 is specimen ..... above.

The concentration of alcohol in the breath for the purposes of that section is ..... micrograms of alcohol per 100 millilitres of

breath.

Member of the Garda Siochána

Name:

Number:

Signature:

_______________________________________________________________

I the undersigned hereby acknowledge receipt of this statement

_________________________

Signature of person who provided specimens of breath

The Questions

The Case Stated seeks the opinion of this court on the following questions:-

1. 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 Siochána 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

complete breath specimen within a previous incomplete test result.

2. Whether, in the circumstances of this case, the Section 17 Certificate was admissible in evidence against the Accused.

The Certificates in the Present Case

The information contained in the Case Stated as to proceedings in the Garda Siochána Station in relation to the taking of breath

samples from the accused is augmented by the three certificates attached to and forming part of the Case Stated. These three

certificates contain sequential test numbers namely 356400865, 356400866 and 356400867: for ease I will refer to these hereafter as

tests 5, 6 and 7 respectively. The apparatus employed is the intoximeter EC/IR. The apparatus is so designed that on a breath sample

being provided it will within a very short space of time carry out two separate analyses and provide two measurements. In the event

that only one satisfactory reading is obtained it will not produce a prescribed certificate but will record as the case may be “Specimen

1 incomplete” in which case it will carry out one analysis only or “Specimen 2 incomplete” in which case it will record the measurement

of the first specimen but not the second specimen. In the present case on test 5 the apparatus recorded specimen 1 as incomplete

and gave no measurement. Where one or both specimens are incomplete the apparatus will not produce a certificate in the prescribed

form. On test 6 in relation to specimen 1 the apparatus carried out an analysis and recorded a measurement of 88 micrograms of

alcohol per 100 millilitres of breath but recorded in relation to specimen 2 that it was incomplete. No certificate in the prescribed form

was produced. On the third occasion on which the accused gave a sample of breath, test 7, both specimens were analysed, the

measurements being 88 micrograms of alcohol per 100 millilitres of breath on specimen 1 and 87 micrograms of alcohol per 100

millilitres of breath on specimen 2: the apparatus automatically produced a certificate in the prescribed form. The prosecution

proceeded on the basis of test 7 only tests 5 and 6 being disregarded.

Submissions on behalf of the accused

It is submitted on behalf of the accused that relevant in these proceedings are tests 6 and 7. On test 6 the accused successfully

provided one specimen which was analysed and produced a measurement of 88 milligrams of alcohol per one hundred millilitres of

breath. On test 7 he successfully provided two specimens the first of which was analysed and provided a measurement of 88

milligrams of alcohol per one hundred millilitres of breath. At this point he had successfully complied with the requirement to provide

two samples of breath. The second specimen on test 7 provided a measurement of 87 milligrams of alcohol per 100 millilitres of breath.

There was no evidence that the accused had been informed by Garda Cleary that she required two specimens of breath to be

provided on one operating cycle of the apparatus. There was no evidence that the accused was in any way attempting to avoid

providing two breath samples or to frustrate the Garda.

Reliance is placed on the judgment of Kearns J. in the Director of Public Prosecutions v Bridget Moorehouse [2006] 1 I.R. 421 where in

relation to section 13(1)(a) at page 446 he said:-

“I agree with the submission of counsel for the complainant (the Director of Public Prosecutions) that the specimen of breath

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

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

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

comply forthwith with the requirement as may arise under s. 23 of the Act.”

The obligation on a requirement being made is to provide two specimens of breath such as to enable the concentration of alcohol in

the breath to be measured. This the accused did. There is no requirement in the statute or the regulations requiring the two

specimens to be provided within a single cycle of the apparatus. The apparatus employed in the present case carries out two tests in

a single cycle through samples being taken and analysed on a single exhalation of breath. The design of the apparatus is such that if

the first sample is not such as to enable the concentration of alcohol in the breath to be measured the second specimen is not

measured and the test is recorded as incomplete. However if the first specimen is such as to enable the concentration of alcohol to

be measured but the second specimen is not then the apparatus will measure the first specimen but return no measurement for the

second specimen and record the test as incomplete without automatically producing a certificate in the prescribed form. In the

present case test 5 was incomplete, the first specimen not enabling the concentration of alcohol to be measured. Test 6 was also

incomplete but the first specimen was measured. Test 7 was complete both specimens being measured. Having provided two samples

which were measured albeit in two different cycles of the operation of the apparatus, that is the first specimen on test 6 and the first

specimen on test 7, the accused had complied with the requirement made of him under section 13(1)(a). In terms of the design of the

machine test 6 may have been incomplete but nonetheless the accused had provided a specimen of breath which enabled the

concentration of alcohol therein to be measured.

In the United Kingdom the Road Traffic Act 1972 constituted an offence similar to that contained in the Road Traffic Act 1994.

Section 8 of that Act (as substituted by the Transport Act 1981 section (25) provides:-

“(1) In the course of an investigation whether a person has committed an offence under…section 6 of this Act a constable

may…require him:

(a) to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State.

(6) Of any two specimens of breath provided by any person in pursuance of this section that with the lower proportion of

alcohol in the breath shall be used and the other shall be disregarded…”

In Howard v Hallett [1984] R.T.R. 353 a requirement was made of the defendant pursuant to section 8 and he provided a first

specimen of breath. In error the Constable did not require the defendant to provide a second specimen. Realising his mistake he

repeated the procedure taking two further specimens and on foot of the same the defendant was prosecuted for an offence. A

Divisional Court of the Queen’s Bench Division held that section 8(1)(a) empowered a constable to require a person to provide no more

than two specimens of breath and that in the circumstances outlined the relevant specimens were the first and second specimens

taken from the defendant and that accordingly his conviction on the evidence of the results of the tests on the second and third

specimens was in error. In the course of his judgment Robert Goff L.J. said:-

“However, Mr Lofthouse had further alternative submissions to make. The first one which, I hope with all respect to Mr

Lofthouse, I have understood, was that the provision of a specimen, pursuant to a request made by a constable under section

8(1), must be in accordance with the operating procedure under which the machine operates. As I understand the submission,

since the machine was designed to test two specimens of breath and, on the first round, only tested one, then one must

disregard the first specimen altogether. The only specimens of breath, on Mr Lofthouse’s construction, which were given

pursuant to the request, would be tests 2 and 3. They were specimens given in accordance with the operating procedure of

the machine.

I hope I have not done any injustice to Mr Lofthouse’s submission, but I have to say that, if I have understood it correctly, it

turns the law on its head. It seems to me that, as Mr Sellick put it, that the machine must follow the act and not the act

follow the machine. Mr Lofthouse’s argument is trying to tailor the act to a particular device which happens to be approved by

the Secretary of State. That cannot be right.”

That, it is submitted on behalf of the accused, in effect is what the prosecutor seeks to achieve in the present case – to have the

construction of section 13(1)(a) tailored to the apparatus used.

Section 13(1)(a) provides that a member of the Garda Siochána may indicate the manner in which the requirement is to be complied

with. The first question in the Case Stated in Director of Public Prosecutions v Moorehouse was as follows:-

“Where following an arrest under s. 49 of the Road Traffic Act 1961 the arrested person is required to provide two specimens

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

manner in which the arrested person is to comply with the requirement, does s. 13(2) of the Road Traffic Act 1994 make it an

offence to refuse or fail to comply with the requirement in the manner outlined by the member of An Garda Siochána making

the requirement?

Kearns J. held that the words “and may indicate the manner in which he is to comply with the requirement” do not form part of the

offence created by section 13(2) but are merely enabling words whereby a Garda may and should indicate how a breath test is to be

performed. The offence created was that of failure or refusal to provide two specimens provided that the same are such as to enable

the concentration of alcohol in the breath to be measured. There is no offence of failing to comply with the requirement in the manner

indicated by a member of the Garda Siochána created by section 13(2).

In short pursuant to the requirement made of him the accused had provided two specimens capable of enabling the alcohol in his

breath to be measured namely the first specimen on test 6 and the first specimen on test 7. Any prosecution of the accused must be

on the basis of these two tests there being no statutory power to require a third or subsequent test. To hold otherwise would require

the manner in which the apparatus functioned to regulate the construction of the statute.

Submissions on behalf of the Prosecutor

The prosecutor firstly made submissions as to the manner in which the court should approach the construction of the relevant

legislation. In Scully v Director of Public Prosecutions [2005] 1 I.R. 242 Hardiman J. said:-

“Applications on this basis must be discountenanced in the interest of the public right to prosecute, but also in the interests of

the integrity of the jurisdiction, in a proper case, to restrain a prosecution on the basis that significant evidence has been

ignored or destroyed.”

While that case concerned an application to restrain a prosecution where evidence had not been preserved it is submitted that the

comments apply equally to the present case: regard should be had to the public interest in having crime prosecuted. Reliance was

also placed on dicta of Denham J. in B v Director of Public Prosecutions [1997] 3 I.R. 140 which concerned delay in the prosecution of

sexual offences where at pages 195-196 she stated:-

“It is not the applicant’s interests only which have to be considered. It is necessary to balance the applicant’s right to

reasonable expedition in the prosecution of the offences with the community’s right to have criminal offences prosecuted.”

Again in Director of Public Prosecutions v McNeil, Supreme Court, unreported 22nd July 1998 O’Flaherty J. said:-

“In relation to the charge of drunk driving, that is notorious for throwing up technical points – and very often specious

technical points – we do well to remind ourselves that courts of law exist to do justice between the parties and not to act as

disciplinary tribunals over the conduct of litigation.”

The well-known dicta of Scarman L.J. in R v Sang [1980] A.C. 402 are also relied on:-

“When asked to rule, (judges) should bear in mind that it is their duty to have regard to legally admissible evidence, unless in

their judgment the use of the evidence would make the trial unfair. The test of unfairness is not that of a game; it is

whether…the evidence, if admitted, would undermine the justice of the trial…For the conviction of the guilty is a public

interest, as is the acquittal of the innocent. In a just society both are needed.”

The section 17 certificate relied on in the present case is such legally admissible evidence and it is appropriate that regard should be

had to the same. Turning to the facts of the present case only one requirement pursuant to section 13(1) was made of the accused.

His first two attempts to comply with the same were unsuccessful: the third attempt was successful and accordingly the

measurements on this attempt are the relevant ones for the prosecution of the offence. There is no restriction placed by section

13(1) on the number of attempts to comply with the requirement.

Director of Public Prosecutions v Moorehouse is concerned with two specific issues: the questions raised on the Case Stated were as

follows:-

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

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

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

1994, make it an offence to refuse or fail to comply with the requirement in the manner outlined by the member of An Garda

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

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

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

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

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

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

In that case the accused made three unsuccessful attempts to provide a sample of her breath in that she did not exhale sufficient

breath in order to provide a breath specimen capable of being measured. On all three attempts specimen 1 was incomplete and no

second test was carried out. On the first question Kearns J. considered that the phrase “and may indicate the manner in which he is

to comply with the requirement” in section 13(1)(a) to be merely an enabling provision and not to form part of the requirement. The

accused was charged that she did “fail to comply forthwith with the said requirement in the manner indicated by the said member of

the Garda Siochána contrary to section 13(2) of the Road Traffic Act 1994” and it was held that no such offence was created by

section 13(2) and accordingly the question was answered “no”. As to the second question it was held that merely exhaling into the

apparatus is not sufficient compliance with the requirement under the section unless it enables the concentration of alcohol in the

breath to be determined. In considering dicta in the judgments the court should have regard to the context, namely the specific

questions raised.

In the course of his judgment dealing with the second question Kearns J. said:-

“The answer now given is purely directed to the issue of what is or is not compliance by the person of whom the requirement

is made.”

In the present case the specimens of breath provided on the first two attempts were not sufficient to enable the apparatus to

measure the concentration of alcohol in two specimens of breath and accordingly until the third successful attempt the accused had

not complied with the requirement.

Decision

I agree fully with the approach adopted by Kearns J. in Director of Public Prosecutions v Moorehouse to the interpretation of section

13(1)(a) where he said:-

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

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

interpret strictly words setting out the elements of an offence (Maxwell on the Interpretation of Statutes, 12th ed, (pp 239-

240)).

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

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

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

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

lean against the creation or extension of penal liability by implication.”

I also consider it important to bear in mind the dicta of Goff L.J. in Howard v Hallett quoted above – “the machine must follow the act

and not the act follow the machine”. In construing a penal statute, as any other statute, the literal rule should be applied but it

should not be applied if this would lead to an absurd result which is pointless and which negates the intention of the legislature

derived from the construction of the section within its context: where appropriate a purposive interpretation may be applied.

In McDonnell and Others v Attorney General and Another, Supreme Court, unreported, [2006] I.E.S.C. 64 the appellants challenged

the constitutionality of the procedures provided for in the 1994 Act and contended that they had been denied the opportunity of

receiving a breath sample which could be independently tested. In his judgment the learned High Court judge set out the safeguards

which the statutory provisions provide for an accused. Among those safeguards listed by the learned High Court judge and referred to

in the judgment of this court is the statutory requirement in section 17(1) of taking the specimen with the lower concentration of

alcohol for the purposes of section 49(4).

While the precise wording of the legislation with which the court in Howard v Hallett was concerned differs from the provisions of the

Road Traffic Act 1994 I find the approach there adopted persuasive. It would be inappropriate to allow the manner in which a

particular apparatus operates to regulate the construction of the section but rather the apparatus in its operation should correspond

with the requirements of the section.

Section 13(1) empowers a member of the Garda Siochána to require a person to provide by exhaling into apparatus for determining

the concentration of alcohol in the breath two specimens of his breath: they must be such as will enable the concentration of alcohol

in the breath to be measured. In terms it does not permit a requirement for more than two such specimens. Section 13(3) creates an

offence – refusing or failing to comply with a requirement under section 13(1)(b). Failure to provide a third such specimen could not in

my view constitute the offence. That only two samples should be taken is important as otherwise one of the safeguards afforded by

section 17(1) would be lost. Thus if, in a marginal case, three specimens should be tested the measurements being 34 micrograms, 36

micrograms and 37 micrograms respectively then whether or not an offence had been committed would depend upon whether the first

and second specimens or the second and third specimens were appropriate to be considered. On a literal reading of section 17(1) two

specimens only are envisaged the lower of which shall be taken into account for the purposes of section 49(4) and 50(4) the other

being disregarded. On a literal reading of section 17(1) what must be taken into account are the first two specimens which are such

as to enable the concentration of alcohol in the breath to be measured. In the present case that is specimen 1 on test 6 and

specimen 1 on test 7. It seems to me irrelevant that the apparatus used by reason of its design could not produce a certificate in the

prescribed form in relation to those two specimens.

In the course of his judgment in The Director of Public Prosecutions v Moorehouse McCracken J. held that the requirement in section

13(1)(a) is to provide two specimens of breath and if the subsection had intended that the manner of compliance was also a

requirement this would have been clearly stated. He went on to say:-

“This is a penal statute, providing for a term of imprisonment in the event of the commission of an offence. In such

circumstances, if an offence is to be created by the statute that offence must be clearly specified and defined. It is not

something to be implied from the wording of the statute. In the present case the statute is quite clear that the offence is

failure to comply with ‘a requirement’, and I can see no justification for any construction of that section which would extend

the offence beyond that status.

Account must also be taken of the purpose of the section which is to enable the Garda concerned to determine the

concentration of alcohol in the person’s breath. If the construction as put forward by the complainant is accepted, then if the

person concerned does supply specimens of breath sufficient to determine the concentration of alcohol, but does so in some

manner other than that indicated by the Garda who makes the requirement, in the absence of some very specific provision I

find it difficult to see how that could possibly be construed as an offence. Equally, if the member of the Garda Siochána

indicated a manner of compliance with the requirement which is very difficult, surely the person cannot be penalised for giving

the specimens of breath in some much simpler manner. I would therefore answer the first question in the Case Stated as

‘no’.”

In short, where two samples are given which are capable of enabling the amount of alcohol in the breath to be measured a

requirement under section 13(1)(a) is complied with.

Having regard to the decision of this court in Director of Public Prosecutions v Moorehead section 13(1)( ) requires that two

specimens of breath should be provided but not that they be provided in a manner indicated by a Garda. The specimens must each be

such as to enable the concentration of alcohol in the breath to be measured. The first specimen on test 6 and the first specimen on

test 7 were in fact measured by the apparatus. However the manner in which the apparatus is designed to function is such that it

could not automatically produce a certificate certifying the results of these two tests. This circumstance cannot regulate the

construction of the statute - the design of the apparatus cannot regulate the construction of the statute. A consequence of this is

that certificate 7 which is based on the second and third specimens actually measured cannot ground a prosecution for an offence

under section 13(1)(a). As the apparatus used, by virtue of its design, is incapable of automatically producing a certificate in the

prescribed form in respect of the two relevant specimens there is not in existence a certificate capable of grounding a prosecution.

The certificate sought to be relied upon, which is in the prescribed form, relates to the second and third specimens measured by the

apparatus and which are not the specimens relevant for the purposes of the offence with which the accused is charged.

Having regard to the foregoing I would answer the questions raised in the Case Stated as follows:-

Question 1: No

Question 2: No.