Take my breath away

breath5A recent case means gardaí should now be more careful than ever when approaching a drink driving suspect for a breath sample in a garda station, says Kenny Kerins BL

 

Until the recent judgement in D.P.P. v Cagney [2013] IESC 13 in the Supreme Court the prosecution of a refusal/failure in a Garda station in a drink driving case was perhaps the most straightforward matter for members of An Garda Síochána. The requirement to prove driving was no longer an issue to be proven. Once evidence of a lawful arrest, detention and a lawful requirement being made, accompanied by the warning of an offence being committed, there was little scope for an accused person to rely on a defence of any kind. The penalty upon conviction remains to be four years, consequential disqualification upon conviction.

Section 12 of the Road Traffic Act 2010 allows a member of An Garda Síochána to make a demand for a breath sample in circumstances where a person has been arrested for an offence under the relevant sections. An arresting member may make a requirement for breath under section 12 (1)( a) or demand the provision of a sample under Section 12(1)(b) for the arrested person to provide a sample of their blood or at their option, urine to a doctor.

“Since 1994, the Act was interpreted as not containing any obligation on the Garda demanding the sample to make the prisoner aware that there is an alternative test to which they can provide an alternative sample of blood or urine…”

Failure to comply with the requirement is an offence under the same section. There is however a defence provided for in section 22 of the Act where an accused person had a special and substantial reason that prevented them from complying with the requirement and that they offered blood or urine and were not called to do so.

breath3The Act was drafted in such restricted terms that the litigation and jurisprudence on the subject had deemed the offence for all intents and purposes as an offence of strict liability. In practice, once the requirement had been made and there was no compliance, in the absence of a special and substantial reason and an offer from the prisoner to an alternative sample, the accused person would have no defence in law to the charge.

In certain cases where the accused person, troubled by their lack of ability to provide a breath sample attended their clinician to discover a serious respiratory illness. Evidence was adduced at the hearing of the charge and a strict interpretation of the act would prevent the accused from relying on any defence as this was not disclosed at the time.

Since 1994, the Act was interpreted as not containing any obligation on the Garda demanding the sample to make the prisoner aware that there is an alternative test to which they can provide an alternative sample of blood or urine. Even if the prisoner disclosed an illness to the Garda demanding the sample it was not a requirement for him/her to act on foot of the information received however in practice it would appear that in many cases a doctor would have been called at the behest of the Garda who may have had a genuine concern of the prisoners ability to provide a breath specimen. However any case that was litigated in the High Court resulted in a strict interpretation and left the obligation solely with the prisoner to proffer both information regarding the medical impediment or otherwise and in addition an offer of blood or urine at the time the obligation for the breath sample was made.

The Supreme Court in Cagney has changed the interpretation of the statute considerably and how cases will be dealt with by both the District and Circuit Courts. In that case the defendant Miss Cagney was charged and prosecuted for failing to comply with a requirement to provide a breath sample. The case came before the Circuit Court on appeal. Judge O’Sullivan upon hearing the matter was satisfied that Ms Cagney, having been lawfully required to provide two samples of her breath by means of an intoxilyser, was unable to do so due to a medical condition. It was accepted by both prosecution and defence that the accused was not offered the alternative of giving a sample of blood or urine. Legal argument followed as to whether, in those circumstances, the accused was entitled to defend successfully the prosecution brought against her.  Judge O’Sullivan was of the view that she was but was asked by the Director of Public Prosecutions to state a case to the Supreme Court. The facts of the case were relatively straightforward.  It was accepted that the Garda charged with dealing with the application of the intoxilyser accepted that Ms. Cagney had made genuine attempts to provide a breath sample. It was also accepted that the Garda in question had asked Ms. Cagney whether or not she had any medical conditions which would prevent her from providing a specimen but that she had replied “none”. At the trial before Judge O’Sullivan Ms. Cagney did indicate that she had a cough and a chest infection. Despite the fact that her general practitioner found no clinical symptoms when he saw her the following evening, he did diagnose a post-viral condition and formed the view that Ms. Cagney would not have been able to provide a breath sample. Simply put a lawful requirement had been made, the accused person had failed to comply with the requirement and the reason put forward was the accused was unable to do so on the basis of a medical condition. The Supreme Court noted that genuine attempts were made.

“If in circumstances where medical information or otherwise is disclosed at any part of the detention or procedure which could be regarded as special or substantial, the onus will be on the garda to proceed… “

Significantly and substantially different from previous interpretations of the Act, it was noted that when there is an obligation of an accused person to provide a sample upon which a prosecution can rely on, certain constitutional safeguards must apply.

This decision has had a significant effect on the manner in which An Garda Síochána should now approach the demand for a breath sample. The shift in terms of the obligation is now much more in favour of the accused person than before. From a position of strict liability to a situation where the evidential burden upon the accused is lessened greatly. If in circumstances where medical information or otherwise is disclosed at any part of the detention or procedure which could be regarded as special or substantial, the onus will be on the garda to proceed by way of section 12(i)(b) and a doctor, or registered nurse should be called to attend the station and a demand for blood or urine should be made. Even in circumstances where the garda is not aware of any medical issue during the detention and before the obligation is made, the defence provided for under section 22 of the act is open to the accused to rely on at any hearing of the matter before the Court. This can be established by the calling of medical evidence at the hearing of the trial.

It will have a considerable effect on the prosecution of this offence and it is now imperative on any Garda who is making an obligation under Section 12(1)(a) to be cognisant of a constitutional protection of the accused that they must be made aware in a clear and understandable way of the possibility of a defence regarding inability and the alternative available to them.

For full and in-depth coverage, see the current printed edition of Garda Review.

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