The High Court has upheld the dismissal of a drink driving charge in the District Court, on the grounds that the accused was not given enough time to exercise his option to give a urine sample.
However, Mr Justice Geogh egan stressed that he was basing his decision on the facts of that case and it could "not possibly" have ramifications for other cases.
While a certificate of analysis from the Medical Board, which inspected a blood sample from Mr Noel O'Connor of Wellview Crescent, Dublin, indicated he was "very substantially over the limit", it would be "quite wrong for me to take this into account", the judge said.
He was delivering his reserved judgment on an appeal by the DPP, by way of case stated, from an order by District Judge Mangan of February 8th, 1996 dismissing a drink driving charge against Mr O'Connor on the grounds that he should have had a minimum of 30 minutes to provide a urine sample.
Mr Justice Geoghegan said Garda Anthony O'Driscoll had said under cross-examination that Mr O'Connor had opted to give a urine sample at 2.40 a.m. but in the next 15 minutes was unable to do so. He was apparently co-operative but extremely nervous.
Then the doctor concluded he was not going to be able to do so and the garda told him he would have to give blood.
The garda had stated that the doctor was under pressure to attend another Garda station and it was in those circumstances Mr O'Connor opted to provide a blood specimen.
Mr Justice Geoghegan said the judge had accepted that the man had opted for a urine specimen and a blood sample was given only because Mr O'Connor was unable to provide a urine sample within the time allowed.
It was well established that permitting the exercise of the option to give a urine sample, if it can be given, is a condition precedent to any obligation to give a blood sample. Mr Justice Geoghegan said Judge Mangan dismissed the charge because he was of the view that Mr O'Connor was not given a reasonable opportunity to provide a urine sample. It therefore followed that the subsequent option for blood was not a proper option.
He noted that Judge Mangan had said the man had been allowed 22 minutes at the outset and the judge thought he should have been allowed a minimum of 30 minutes to provide a urine specimen.
Judge Mangan had also noted that the prosecuting garda had fairly stated that the doctor had been under pressure and that this was conveyed to Mr O'Connor, who was also genuinely agitated by the idea of giving a blood specimen.
Mr Justice Geoghegan said there were a number of unsatisfactory features to the case, including the reference to 22 minutes which was not explained in circumstances where a 15-minute period was also referred to.
However, because he took a particular view, he did not deem it necessary to return the matter for clarification.
It seemed to him that Judge Mangan's decision did not involve any question of law and was not perverse and, in those circumstances, the DPP was not entitled to bring the appeal.
He was "quite certain" that Judge Mangan was not holding as a matter of law that 30 minutes had to be allowed to provide a urine specimen in every case.
He said he believed the judge made the reference in the context of the circumstances of the case, including above all the pressure apparently exerted on Mr O'Connor because of the doctor's other engagements. Therefore, there was no question of law to be determined by the High Court.