Court to rule on whether judgment in drink driving case will be grounds for dismissal of other cases

By Ann O'Loughlin

The High Court has been asked to rule on whether a previous judgment in a drink driving case could be grounds for dismissing a number of other cases.

Already five separate cases from District Courts, in which dismissals were sought on the basis of what is now known as the "Bohannon judgment", have been referred to the High Court for clarification of the law.

The central issue is whether a drink driving prosecution can be dismissed arising out of the way a suspected drink driver is processed when they are brought to a garda station.

Under the process, there must be a 20 minute waiting period before a breath test is taken from the arrested person.

During that time, they must be observed by a garda to ensure they do not consume any food or water before the test is taken in order to ensure the breath sample is not contaminated.

However, in a judgment given by recently retired High Court judge Michael Moriarty, he found the fact that one garda was reading the arrested person their rights while another was observing the person during the same 20 minute observation time, meant there was an overlapping of what are specific and independent functions.

This "contemporaneous processing" rendered the detention of the person unlawful and the prosecution must therefore be dismissed, the judge found.

Mr Justice Moriarty later clarified that his judgment only applied to the particular case before him and should not be used as some sort of "landmark judgment".

Subsequently, however, lawyers for other accused drink drivers cited the Bohannon judgment in seeking to have their cases dismissed.

As result, the DPP sought to have the matter referred to the High Court for clarification.

Five such cases came before Ms Justice Miriam O'Regan on Friday when she was told that the same arguments would be made in all five.

The DPP argued the court had to decide whether the Bohannon judgment provided grounds for dismissing other cases and urged Ms Justice O'Regan to answer that in the negative.

Lawyers for the five defendants argued the judgment, as in other cases, set the precedent for their cases and stood unless it is overturned on appeal and it had not been.

The case resumes next week.