The Supreme Court yesterday ruled that a district judge had wrongly dismissed a drink-driving prosecution against a woman on the grounds that it was reasonable for her to say she could not give a urine sample in an enclosed cubicle at a Garda station while a male garda and doctor remained in the same room.
The five-judge court overturned a High Court decision upholding the district judge's view.
Mr Justice Murphy said the circumstances under which Ms Jenny Lennon gave a urine sample at Ashbourne Garda station, Co Meath, were "far from ideal but not so deficient as to amount to no choice at all".
In Dunshaughlin District Court, counsel for Ms Lennon, Park View, Ratoath, Co Meath, who was charged with driving under the influence of alcohol on December 15th, 1996, had submitted that, while she had an option to give either a blood or urine sample, that choice must be real and effective.
In the circumstances where his client was asked to give a urine sample in a cubicle which was in the same room where there was a male garda and doctor, there was no such choice, it was argued.
Counsel said Ms Lennon had initially opted to give a urine sample but felt she could not do so in the circumstances. Instead, she felt compelled to give a blood sample and did so. It was argued that the legal requirements were not met.
Judge John Brophy, who inspected the cubicle, held it was reasonable for Ms Lennon to say she could not furnish a sample there and dismissed the prosecution against her. He held she was unlawfully deprived of her choice. Last June the High Court ruled that District Judge Brophy was correct.
The DPP appealed to the Supreme Court. In his judgment yesterday Mr Justice Murphy said the case concerned the adequacy of facilities provided at Ashbourne Garda station about giving blood or urine samples.
He said there were preconditions before gardai could demand specimens. The extraction of a blood specimen involved a clear breach of the citizen's right to bodily integrity while a urine sample involved some intrusion on the right to privacy.
He had no doubt Judge Brophy was correct in finding a person was entitled to choose between giving a blood or urine specimen. If the circumstances in which one or other option was available were so unsatisfactory as to make it unacceptable by reasonable standards, the availability of that option would be illusory and the person concerned would not have been offered their entitlement.
In the present case, the judge said, he could not accept that the circumstances under which Ms Lennon was asked to provide urine were so deficient and represented such an unwarranted intrusion on her right to privacy that Judge Brophy was justified.
While he would like to think the authorities would ensure arrangements for the provision of samples and would respect citizens' rights, it must be recognised that the provision of such samples would necessarily involve some element of discomfort.
In his judgment, also allowing the appeal, Mr Justice Barron said he accepted Ms Lennon would not like to go to a lavatory under the observation of two men.
A female should have no complaint about being asked to provide a sample in a cubicle where she could not be seen. The circumstances were unavoidably embarrassing.