Supreme Court decision on drivers' breath samples
The court by a two-to-one majority decided that merely exhaling into the intoximeter was not
sufficient compliance with the requirements under the road traffic legislation unless it enabled the concentration of alcohol in the breath to be determined.
But the court held that in the particular case before the court a conviction against a woman that she failed to give breath samples “in the manner indicated by the garda” was not provided for in Section 13, of the Road Traffic Act, 1994.
The case concerned the nature of the offence created by Section 13, a penal statute and which imposes an obligation to provide two specimens of a person’s breath at a garda station.
Mr Justice Kearns said that because of its penal nature, Section 13 required to be strictly construed and it was not an offence to refuse or fail to comply with the requirement to give breath samples “in the manner indicated by the garda”.
A Circuit Court judge had submitted two questions for answer by the Supreme Court relating the manner in which a person who is suspected of driving, having consumed alcohol, must comply with the requirements to give intoximeter samples.
The case concerned a woman who was charged with failing to comply with the requirement to provide two specimens of her breath in “the manner indicated by the garda”.
Mr Justice Kearns held that a where the arrested person is required to provide two specimens of breath under Section 13 it was not sufficient compliance with the requirement under the section to merely exhale into the apparature unless it enabled the concentration of alcohol in the breath to be determined.
Mr Justice McCracken said he found it difficult to see how it could be construed that there was an offence if a person supplied specimens of breath sufficient to decide the concentration of alcohol but did so in some manner other than that indicated by a garda.
Equally, if a garda indicated a manner of compliance which was very difficult, surely, said Mr Justice McCracken, the person could not be penalised for giving the specimens of breath in some simpler manner.
