The High Court has ruled that a District Court judge was wrong to dismiss a drink-driving charge against a Co Meath woman on the basis that the arresting garda failed to ask her, before testing her breath, when she had consumed her last drink.
District Judge Brophy had asked for the High Court's opinion of his decision in a case involving Ms Marie Quirke, Durhamstown, Navan, Co Meath, following the DPP's dissatisfaction with the decision.
Ms Quirke was stopped by Garda Roy Dunphy while driving at Durhamstown on April 16th, 2001. An alcolyser test proved positive. She was brought to Navan Garda station where she provided a urine sample.
The Medical Bureau of Road Safety later certified that Ms Quirke had a concentration of 161 milligrams of alcohol per 100 millilitres of urine.
Ms Quirke's lawyer argued in the District Court that the DPP had not established that 20 minutes had elapsed between the time Ms Quirke had last consumed alcohol and the time she had taken the alcolyser test. A 20 minute period is recommended in the "Description and Instructions for Use" for the alcolyser.
A Garda inspector argued there was no statutory requirement that a period of 20 minutes must elapse between the consumption of alcohol by an accused person and their submitting to the alcolyser test. He argued an arrest was lawful where the arresting Garda's opinion was formed solely or partly as a result of a positive alcolyser test.
It was also claimed that Garda Dunphy made it clear he had formed his opinion about Ms Quirke's condition before her arrest partly by reference to the positive breath test and partly from his own observations.
Judge Brophy dismissed the charges against Ms Quirke on the basis that the garda's opinion on Ms Quirke's condition at the time of arrest was partly based on the result of an alcolyser test which the garda knew to be potentially unreliable because the garda had failed to ask Ms Quirke whether she had had a drink within a 20 minute period before being tested.
In his reserved judgment yesterday, Mr Justice Ó Caoimh said the case did not disclose that the garda had any material to show the test was unreliable. Unless a garda knew or had reason to suppose a suspect had consumed alcohol within the preceding 20 minutes, there was no need to wait 20 minutes before they could form a bona fide opinion based on the alcolyser test.
The standard applied by Judge Brophy was incorrect in law, Mr Justice Ó Caoimh held. It was not sufficient to hold the test was potentially unreliable especially where this conclusion was based on the fact that the garda failed to inquire whether Ms Quirke had consumed alcohol within a 20 minute period before administering the test.
The issue was not whether the result was reliable but whether the opinion formed by the garda was a bone fide reason which was reasonable.