DPP -v- Fox: Supreme CourtJudgment was given by the Chief Justice, Mr Justice Murray on July 22nd 2008, Mrs Justice Denham and Mr Justice Hardiman concurring.
Judgment
An additional period of seven minutes' observation of a person accused of drink-driving did not amount to a delay rendering the taking of a breath sample as invalid.
Background
The DPP appealed a decision of the District Court to dismiss a prosecution of the accused for drink-driving. Robbie Fox was the driver of a car parked, with the engine running, on the footpath of Burlington Road on June 4th, 2002.
The arresting garda noticed a strong smell of alcohol from the driver and that his speech was slurred.
He was arrested and brought to Pearse St Garda station, arriving at 2.40am.
The instructions for use of the intoxilyzer required that the suspect be observed for a period of 20 minutes to ensure he took nil by mouth before a breath sample was taken.
Mr Fox was observed for 27 minutes, and two samples were taken, giving a reading of 66 micrograms of alcohol per 100 millilitres of breath. He was then charged.
In court, the gardaí did not explain why he had been observed for 27 minutes rather than 20 minutes before the sample was taken.
The prosecution argued that the additional seven minutes would have been to his advantage rather than otherwise.
The judge of the District Court ruled that as there was no evidence explaining the delay, the detention at the time when the breath sample was taken was unlawful and therefore the evidence of the results was inadmissible.
The prosecution disagreed, and the District Court judge asked the High Court to determine if he was correct. In an ex tempore judgment, the High Court answered in the affirmative.
The DPP appealed this decision to the Supreme Court.
Decision
The Chief Justice, Mr Justice Murray pointed out that Mr Fox was arrested under Section. 50(10) of the Road Traffic Act 19, as amended, which provides that a member of the Garda can arrest a person without warrant for being in charge of a motor vehicle having consumed an excessive quantity of alcohol.
The person must be brought to a Garda station and asked to undergo certain procedures. There is no statutory time limit under which such procedure must be completed, which does not absolve the authorities from avoiding unreasonable delay.
Having briefly reviewed the case-law, Mr Justice Murray quoted from DPP -v- Finn , where it is stated: "Not every delay is unreasonable, and if it is not unreasonable it does not require to be objectively justified."
He pointed out that the whole process from Mr Fox's arrest concluded with his being charged at 4.45am.
"The reality seems to me that these time spans are perfectly reasonable from any common sense point of view, and are not so unreasonable on their fact as to give rise to a question as to the lawfulness of the detention.
"The detention and processing of persons arrested must be done, as a matter of law, with reasonable expedition or without unreasonable delay," he said.
"Absent any special circumstances such as evident malicious intent or purpose, I cannot consider from any other point of view that the delay of seven minutes was one which on the fact of it was so unreasonable as to render the detention unlawful."
Therefore he concluded that the question posed by the District Judge should be answered in the negative.
The full text of the judgment is on www.courts.ie