The hopes of thousands of suspected drunk drivers were dashed yesterday when the High Court threw out a legal challenge to the validity of the intoxilyser, the new high-tech breath test.
A test case based on constitutional and fair procedures issues had been taken by three motorists alleged to have failed intoxilyser readings - Oliver Quinlan, John Purcell and Ashley McGonnell.
Mr Justice McKechnie held that the omission in legislation of providing an option to suspects to give a sample of blood instead of a specimen of breath was not fatal to the statutory provisions governing the use by gardaí of the new technology.
"The plaintiffs' constitutional rights and rights of fair procedures have not been infringed," he said.
Mr Justice McKechnie said he believed the new breath test regime provided adequate representation of and protection for the rights of suspected drink drivers.
He said the regime included specific protections: the taking by the Director of Public Prosecutions of the lower reading of two breath specimens; the application of a 17.5 per cent deduction from that lower reading; the right of a suspect to apply to the District Court for permission to inspect the apparatus, and automatic access to all documentation available in a Garda station relating to the intoxilyser.
The judge said that given the particular evidence in the case before him and notwithstanding the fact that the apparatus was not infallible, there were sufficient internal safeguards and technological mechanisms within it as to ensure that readings specified the actual level of concentration of alcohol in the breath of any arrested person.
In addition to these safeguards, he said all of the other requirements to ground a successful prosecution had to be put in place by the DPP.
"This regime does not equate with an automatic conviction," he said. "I do not believe there is any real possibility of any of the plaintiffs suffering an injustice in the District Court and I cannot conceive of any substantial prejudice existing which would render their trial an unfair one."
Mr Gerard Hogan, SC, who appeared with Mr Shane Patrick Murray for the three plaintiffs, said the case had raised a major constitutional issue and that there were thousands of such cases in being. He asked the court to award the plaintiffs a portion of their costs against the State or to make no order of costs against them.
Mr Feichin McDonagh, SC, who appeared with Mr Luan Ó Braonáin for the State, said that while there was a large number of cases awaiting the outcome of the challenge to the intoxilyser regime, it was not because they had to but because the test case had been brought by the plaintiffs. He said the State was entitled to its legal costs.
Awarding costs against the plaintiffs, Mr Justice McKechnie said it was difficult to say they were acting on behalf of the public or in the public interest. He could not see any compelling reason why the normal rule of costs following the event should not prevail.
Mr Hogan was granted a stay on the order to facilitate consideration of an appeal on the question of legal costs to the Supreme Court. No question of an appeal on the judge's ruling was mentioned in court.