High Court rules District Judge can decide charge of alleged drink driving against man stopped at checkpoint

A District Judge can proceed to decide a charge of alleged drink driving against a man whose Land Cruiser was stopped at an early morning Garda checkpoint in Co Mayo, the High Court has ruled.

After evidence closed in the District Court case, the man's solicitor submitted the charge must be struck out because the arresting Garda had not asked the man whether he had taken 'nil by mouth' for 20 minutes before administering a roadside breath test which returned a fail reading.

A certificate presented to the District Court showed a concentration of 281mg of alcohol per 100ml of urine.

Arising from the solicitor's submissions, District Judge Mary Devins referred three legal issues to the High Court for determination.

These were, before a garda administers a roadside breath test, whether (1) they must observe an accused for 20 minutes to ensure the accused has consumed nil by mouth and (2) ask if they had had anything to drink in the previous 20 minutes. If the answer to both questions was yes, the District Judge asked (3) whether she must dismiss the charge against the man.

Mr Justice Donald Binchy ruled, on the facts of this case, the first two questions did not arise, the charge should not be dismissed and the District Court should proceed to decide it.

The facts meant the answer to the third question was not dependent on the answer to the first two questions, which were of general application, he said.

In this case, the arresting Garda gave evidence as to the basis upon which he formed his opinion the accused had consumed an intoxicant to such an extent as to render him incapable of having proper control of a vehicle in a public place and thereby was committing an offence under Section 4 of the Road Traffic Acts.

The Garda was not challenged about the reasonableness or bona fides of his opinion or cross-examined about the basis for it, he said.

The matters relied on by the accused to contest his arrest - arising from instructions for use of the breathing test apparatus to the effect a Garda should wait 20 minutes before administering a breath test if an accused says they consumed an intoxicant within 20 minutes of their being stopped - were not subject of any evidence at all in the District Court.

The Garda was not asked what equipment he was using, his training in the use of that or to identify the operating instructions for it. Nor was he asked whether he asked the accused if he had taken 'nil by mouth' in the 20 minutes previously or if he had observed the man for 20 minutes before administering the breath test.

Because there was no evidence before the District Court on which it could conclude the Garda's opinion was either unreasonable or lacking in good faith, the opinion must be accepted and the answers to the first two questions were therefore "moot" or pointless.

The District Judge should decide the case on the basis the Garda formed a lawful opinion that an offence under Section 4 of the Road Traffic Acts was committed and the case should not be dismissed on any ground relating to formulation of that opinion, he ruled.


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