High Court allows appeal against dismissal of drunk driving charge due to unjustified detention delay.

Neutral Citation: [2015] IEHC 53

THE HIGH COURT

JUDICIAL REVIEW

[2014 No. 1720 S.S.]

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857 AS EXTENDED BY SECTION 51 OF THE COURTS

(SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR

AND

RONALD DARDIS

DEFENDANT

JUDGMENT of Mr. Justice Hedigan delivered on the 2nd day of February 2015

1. This matter is an appeal by way of a case stated by Judge Bryan Smyth, a Judge of the District Court. Judge Smyth sets the

matter out as follows: -

This is a case stated by me Judge Bran Smyth, a Judge of the District Court, pursuant to Section 2 of the Summary Jurisdiction Act,

1857 as extended by Section 51 of the Courts (Supplemental Provisions) Act, 1961, made at the request of the Prosecutor being

dissatisfied with my determination as being erroneous in point of law.

(1) At a sitting of the Dublin Metropolitan District Court held at Court No. 8 in the Criminal Courts of Justice, Parkgate

Street, Dublin 8 on the 10"' day of June 2014, Mr. Ronald Dardis (hereinafter "the Accused"), appeared before me for the

hearing of a charge brought against him pursuant to Garda charge sheet no. 14575354 alleging that:

On the 08/03/2014 at De Selby Rise, Tallaght, Dublin 24 a public place in the said District Court Area of Dublin

Metropolitan District, while being a` specified person as defined in section 3 of the Road Traffic Act 2010 as

amended, by section 9 of the Road Tragic (No. 2) Act 2011, did drive a mechanically propelled vehicle registration

number 01MN2938 while there was present in your body a quantity of alcohol such that, within 3 hours after so

driving, the concentration of alcohol in your breath did exceed a concentration of 9 microgrammes of alcohol per

100 millitres of breath. Contrary to section 4(4)(b) & (5) of the Road Traffic Act 2010.

A copy of the charge sheet is attached hereto at; schedule A

(2) Garda Shay Kilbride gave evidence on behalf of the Prosecutor in relation to his detection of the alleged offence and

his observation of the Accused in Terenure Garda Station. Garda Timothy Fitzgibbon gave evidence in relation to that

observation and in relation to the operation of the Evidenzer machine at Terenure Garda Station.

(3) 1 found the following facts proved in evidence before me:

(i) On 08/03/2014 at De Selby Rise, Tallaght, Dublin 24, a public place, Garda Kilbride observed the Accused driving

motor car registration number 01-MN-2938. After he had observed the Gardai the Accused reversed the vehicle and

in so doing he mounted the pavement. Garda Kilbride activated the blue lights of the patrol car and spoke with the

Accused from whose breath he detected a strong smell of alcohol. His eyes were glassy and when the Accused

stepped out of his vehicle when asked and Garda Kilbride observed that he was unsteady on his feet and the Garda

formed the opinion that the Accused was under the influence of an intoxicant to such an extent as to be incapable

of having proper control of a mechanically propelled vehicle in a public place. At 00.20 hours on 08/03/2014 Garda

Kilbride arrested the Accused under section 4(8) of the Road Traffic Act 2010 for an offence under section 4(1),(2),

(3) or (4).

(ii) The Accused was conveyed to Terenure Garda Station where he arrived at 00.35 hours and where he was

introduced to the station gaoler, Garda Timothy Fitzgibbon. The custody suite was in use when the Accused first

arrived and once it was available Garda Fitzgibbon entered the Accused's details in the custody record and

explained his rights to him. Garda Fitzgibbon is a trained operator of the Evidenzer 1rl machine used for determining

the concentration of alcohol in the breath.

(iii) At 00.45 hours, Garda Kilbride commenced a 20 minute period of observation to ensure that the Accused took

"nil by mouth" prior to exhaling into the machine for the purpose of breath-alcohol analysis. However, about a

minute before the end of that observation period Garda Kilbride briefly looked away from the Accused and he

testified that he could not be satisfied that the Accused had taken "nil by mouth" prior to providing his breath

specimens and believed it was necessary to commence another twenty minute period of observation of the

Accused, in part to be satisfied of this, so that the analysis of any breath samples subsequently provided would be

reliable; but also in part because during the course of the first observation period he became aware that the

Evidenzer machine was in use.

(iv) A second 20 minute observation period was commenced by Garda Kilbride at 01.12 hours and at 01.32 hours the

Accused was taken to the doctor's room, an hour after arriving in the garda station, where he subsequently

provided two specimens of his breath at 01.38 and 01.42 hours respectively

(v) The analysis of the Accused's breath revealed a concentration of 64 microgrammes per 100 millilitres of breath.

The Accused is the holder of a learner permit and as the alcohol concentration was in excess of the permitted level

he was charged by Sergeant Brendan Kelly and released from custody at 02.25 hours to appear in Court No. 3 of

the Criminal Courts of Justice on 3rd day of April 2014.

(5) In cross-examination Counsel for the Accused queried the Gardai in relation to why it had taken slightly over one hour

from the Accused's arrival in the Garda Station to obtain a breath specimen from him. The Gardai explained the reason as

outlined herein. Garda Kilbride confirmed that he had looked away momentarily during the first 20 minute observation

period and that this was towards the end of that observation period. He confirmed that he had remained in the room with

the accused at all times. It was submitted to me on behalf of the Accused that the Gardai had not objectively justified

the additional twenty minute period of observation. It was submitted that a 40 minute observation period was

unnecessary and unjustified in the circumstances and momentarily looking away did not justify the recommencement of a

full second period of observation. The Prosecution submitted that the time taken was necessary to ensure an accurate

test.

(6) I was satisfied and I so found that the second observation period was undertaken for a combination of reasons: first,

because it was noted that the Evidenzer machine was in use by someone else during the first observation period and also

because the Garda had momentarily lost sight of the Accused towards the end of that observation period giving rise to

alleged concerns as to whether the garda could prove beyond a reasonable doubt that the accused had taken "nil" by

mouth in the 20 minute period prior to exhaling into the apparatus, a very important factor in ensuring an accurate

breath-alcohol reading.

(7) Whereas I was satisfied that an observation or deprivation period of twenty minutes prior to exhaling into the

Evidenzer machine is reasonably necessary in order to have an effective and reliable analysis of an arrested person's

breath, I was of the opinion that Garda Kilbride should have checked to see if the Evidenzer machine was in use before he

commenced the first 20 minute period of observation. Had he done so, he would have seen that the machine was in use

and he could then have waited and commenced the observation period later when he knew, the machine was available.

There would then have been only one period of observation. Moreover, I was satisfied that the momentary looking-away

by Garda Kilbride, while he remained in the room with him, was not sufficient in the particular circumstances to give rise to

a reasonable apprehension that the accused could have ingested, imbibed or otherwise taken something by mouth that

would render the breath-alcohol reading inaccurate.

(8) In the circumstances I was satisfied that the detention for the second 20 minute period of observation was unjustified

and I dismissed the case.

(9) The Prosecutor, being dissatisfied with my decision as being erroneous on a point of law, applied that I state a case

for the opinion of the High Court. The opinion of the High Court is hereby sought on the following questions:

(i) Was I correct in law in my determination that the second twenty¬ minute period of observation in this case was

not justified?

(ii) Was I correct in law in dismissing the charge?

2. The jurisdiction of the court – this is a procedure exclusively confined to correcting errors of law by an inferior court in the

determination of proceedings before it. See The Director of Public Prosecutions v. Nangle [1984] ILRM 171. It is confined to a party

who is “dissatisfied with the said determination as being erroneous in point of law”. It is not available therefore to a party dissatisfied

with a decision of the District Court on the grounds that the District Judge has taken one view rather than another of the evidence as

has accorded freedoms to one witness and withheld it from another. See Fitzgerald v. The Director of Public Prosecutions [2003] 3 IR

247.

3. The principle constitutional right involved herein is the right to liberty under article 40.4. The law is well settled that in

circumstances as herein, the gardaí are entitled to retain in custody a person arrested so long as is reasonably necessary to obtain

the sample required. Thus the powers of detention must be exercised in a manner that does not require unreasonable or unnecessary

delay. See The Director of Public Prosecutions v. Finn [2003] 1 IR 312. The onus of proving the necessity and reasonableness of the

detention lies upon the prosecutor. It must be justified by objective reasons. Not every delay is unreasonable. It is a matter for the

trial judge to determine at first instance whether the delay was unreasonable. See The Director of Public Prosecutions v. Finn cited

above. The twenty minute period of observation involved herein is reasonably necessary in order to take effective and reliable

samples of the arrested person’s breath. See The Director of Public Prosecutions v. McNeice [2003] 1 IR 372.

4. Thus it was for the District Judge to determine whether the extra twenty minutes period of observation required here was

reasonable and necessary. On the case law above it is clear that one twenty minute period of observation is necessary and the

District Judge found that this period was reasonably necessary. The position is different as to the second period of detention. The

District Judge determined that the second period was undertaken for a combination of reasons. First, because the Evidenzer machine

was in use by someone else and secondly because the garda observing the accused had momentarily lost sight of the accused

although remaining in the same room with him. The District Judge having heard the evidence concluded that the garda should have

checked to see if the Evidenzer was in use and also that what he found to be a momentary looking away by the garda while remaining

with the accused in the room was not sufficient in the circumstances to give rise to a reasonable apprehension that the accused

could have ingested, imbibed or otherwise taken something by mouth thus rendering the reading inaccurate. For the combination of

these two reasons the District Judge was satisfied that the second detention period was unjustified.

5. It seems to me that this was a finding of fact reasonably made by a trial judge who had heard all the evidence and concluded a

second period of detention in the circumstances herein was unjustified. It is not an error of law that an alleged error of factual

analysis that is presented by the prosecution to this court. Thus on the principles enunciated above, I cannot intervene even were I

to disagree with the District Judge. The court has a limited jurisdiction only to correct errors of law. As it happens I agree with the

finding by the District Judge. The momentary loss of attention by the Garda herein whilst remaining in the same room could not give

rise to an apprehension that ‘nil by mouth’ could not be established.

6. The answers to the questions posed by the District Judge to this court are as follows:

1. Yes the Judge was correct in law in his determination that the second twenty minute period of observation in this case

was not justified.

2. Yes the District Judge was correct in law in dismissing the charge.