The Supreme Court has ruled that while drivers suspected of having consumed alcohol who are brought to a Garda station do not have to give breath samples in the manner indicated by a garda, they must provide breath specimens sufficient to enable the concentration of alcohol in the breath to be determined.
The court decided by two to one yesterday that exhaling into an intoximeter was not sufficient compliance with road traffic legislation requirements unless it enabled the concentration of alcohol in the breath to be determined.
However, in the particular case before the court, it ruled that it was not an offence under section 13 of the Road Traffic Act for a woman to fail to give breath samples "in the manner indicated by the garda".
The case related to a woman who was arrested in December 2001 and brought to Dún Laoghaire station where she was asked to provide two breath specimens. She was charged with failing to comply in "the manner indicated by the garda". She was given the test three times and each time she was unable to seal her lips around the mouthpiece. The machine, each time, printed two identical statements that the specimen was incomplete. She was convicted in the District Court for failing to comply with the requirements.
She appealed to the Circuit Court which submitted issues to the Supreme Court relating to the manner in which a driver must comply with the requirements.
Mr Justice Nicholas Kearns, giving the court's decision, said 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".
Where the arrested person is required to provide two breath specimens under section 13, it was not sufficient compliance with the requirement under the section to merely exhale into the aperture unless it enabled the concentration of alcohol in the breath to be determined, he found.