The Supreme Court has overturned a High Court decision upholding the dismissal of a drink-driving charge on the grounds that the defendant was not given sufficient time to exercise his option to give a urine sample.
The five-judge court granted an appeal by the DPP against a High Court determination that District Judge Joseph Mangan was entitled to dismiss a drink-driving charge against Mr Noel O'Connor, of Wellview Crescent, Dublin, on the grounds that he should have had a minimum of 30 minutes to provide a urine sample.
In his High Court decision, Mr Justice Geoghegan noted that a certificate of analysis from the Medical Board which inspected a blood sample taken from Mr O'Connor had indicated he was "very substantially over the limit", but added it would be "quite wrong for me to take this into account".
Mr Justice Geoghegan said Garda Anthony O'Driscoll had said, under cross-examination, that Mr O'Connor had initially opted to provide a urine sample at 2.40 a.m. but during the next 15 minutes was unable to do so.
After 15 minutes, the doctor concluded he was not going to be able to do so and the garda told him he would have to give blood. A blood specimen was provided.
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, and it therefore followed the subsequent option for blood was not a proper option. He noted Judge Mangan had said the man was allowed 22 minutes at the outset but should have been allowed 30 minutes to provide a urine specimen. In his Supreme Court decision yesterday, Mr Justice Murphy said he had reluctantly to disagree with Mr Justice Geoghegan's view that there was no question of law to be determined.
He said there was no provision under Section 13 of the Road Traffic Act requiring or authorising any delay or postponement in the taking of specimens beyond what might reasonably be required to enable the person to exercise their statutory choice between giving a specimen of blood or urine.
The taking of either sample must be completed within three hours of the time the person concerned was driving the car, he noted. To that extent at least, the passage of time was a factor to be borne in mind. If there was no moratorium on the taking of a blood specimen, there could be no statutory requirement for the allowance of time for the provision of a urine specimen.
It could be appreciated a person might not be able to provide a urine sample immediately. It was not then a question of how long a garda and doctor must wait. The legal consequence was that, where a person opted to give a urine sample and could not do so, they must provide a blood sample.
The election to provide a urine sample was not exercised by agreeing to provide it, but actually providing it. The requirement to provide a urine sample ran parallel to the obligation to permit the extraction of a blood specimen.
No doubt the doctor and gardai involved would afford the person concerned a reasonable interval to provide such a sample, the judge said. But he was satisfied the district judge was wrong in concluding Mr O'Connor was entitled to an interval of 30 minutes or any such interval. He would allow the appeal.
