Director of Public Prosecutions v McGovern [2019] IECA 293 (18 November 2019)

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JUDGMENT of Mr. Justice Patrick McCarthy delivered on the 18th day of November

1. This is an appeal against the judgment and order of McDermott J. of the 9th October,

2018. District Judge Colin Daly had sought the opinion of the High Court as to whether he

was entitled to dismiss a certain prosecution pursuant to ss.4(4)(a) and (5) of the Road

2. I do not set out the case stated in extenso. The following facts, as set out, and the

(1) Garda Long lawfully stopped the respondent who was driving a mechanically

propelled vehicle on the 3rd September 2016 and lawfully required him to provide a

specimen of his breath by exhaling into an alcometer, which Mr McGovern did. The

type of alcometer in question was calibrated to give readings of “Pass” or “Fail” and

the result was a “Fail”. Solely on the basis of that result, Garda Long formed the

opinion that Mr McGovern had consumed an intoxicant and that he had committed

an offence under ss. 4(2), (3) or (4) of the Road Traffic Act, 2010. On the basis of

it he arrested him under s.4(a) of the same Act and he informed him of the reason

for his arrest. Later, having regard to the result of a breath test at a garda station

he was prosecuted and it is not capable of debate but that the finding of alcohol in

his breath (54Mcg/100mL) was such as to properly ground a conviction. The

alcometer used for the roadside test provides no information as to the

concentration of alcohol in the breath nor indicates whether or not a person is over

a permitted limit. There was nothing in the manner of Mr McGovern’s driving which

attracted the attention of the garda, he drove up to the checkpoint without difficulty

(2) Mr McGovern’s solicitor Mr. Lanigan submitted to the learned District Court judge

“Based on an analysis of his evidence [that of the garda] it is not an opinion he

could come to. It is an opinion, the only opinion that he could come to that is

reasonable and it must be a reasonable opinion is that Mr McGovern on the night

had a presence of alcohol on his breath but that there was no evidence that goes

(3) It is plain from the case that Mr McGovern’s solicitor, in his submissions, relied

upon the decisions of DPP v. Gilmore [1981] I.L.R.M. 102 and DPP v. Brady

[1981] 1 I.R. 337. He submitted, no doubt, in good faith, that in Gilmore the Supreme

Court had decided that an opinion formed solely on the basis of a so called “Fail” of

an alcometer test was insufficient to ground an arrest. Brady is of no relevance.

(4) In the case as appears from the transcript the learned District Court judge ruled

“… I am being asked to give a direction and to follow the decision of the Superior

Courts in DPP v. Gilmore where the Supreme Court has determined that the breath

test on its own is not sufficient to form the opinion and therefore I have to conclude

on the basis of the evidence that is before me that the garda could not properly or

reasonably form the opinion that the accused on the night in question was

incapable of driving the mechanically propelled vehicle and therefore I am going to

(5) In the case stated, the learned District Court judge summarised his decision as

“20. Having considered the submissions of the parties, I then made my decision in

this case. I found as a fact that on the basis of the evidence and having regard to

the case law from the Superior Courts, Garda Long had no reasonable basis to

conclude that the respondent was intoxicated to such an extent as to be incapable

of having proper control of a mechanically propelled vehicle. As a consequence of

that ruling, I accepted Mr. Lanigan’s [solicitor for Mr. McGovern] argument and

21. As a result of the ruling that I made at the hearing and the fact that a lawful

arrest is a pre-condition to a requirement for an evidential specimen under s.12 [of

the 2010 Act] the evidence subsequently obtained following the arrest of the

22. In those circumstances, I dismiss the prosecution as against the respondent…”

3. It was submitted on Mr McGovern’s behalf both here and in the High Court that in truth

no question of law arose which could legitimately be the subject of the enquiry made in

the case stated, but rather what the director was seeking to do was to impugn a pure

finding of fact. I think that this is an oversimplification. Whilst it was not explicitly stated,

the argument must be that after exclusion of the evidence of alcohol in the accused’s

breath obtained after arrest there was no evidence of the offence. Such a proposition is

certainly consistent with the case stated, but not with what actually occurred as appears

from the transcript. The thrust and tenor of the submission on behalf of the accused was

that there was no case to answer because the opinion was not objectively reasonable

having regard to the state of the law as erroneously conceived by Mr Lanigan. Any

potential application to exclude the evidence as unlawfully obtained was effectively

conflated in practice with an application to acquit due to the absence of the excluded

evidence. Obviously, such an application could not arise if the arrest was lawful with

consequent admission of the evidence. It is plain that the core of the decision and reason

for the dismissal was an error of law as to whether or not the result of the alcometer test

was sufficient to ground the opinion, of itself. That conclusion was of course based on the

evidence as to why the suspicion was formed and that evidence is not in dispute. Even if

the conflation to which I have referred did not occur, an erroneous ruling of law resulting

in the exclusion of evidence, giving a rise to an acquittal, raises a question of law going to

the issue of whether or not Mr McGovern was rightly acquitted. This is long established.

4. This aspect was dealt with in explicit terms by McDermott J. as follows: -

“13. Finally, I do not consider that this conclusion [on the issue as to the basis of

the arrest] in any way interferes with the jurisdiction of the learned judge to make

appropriate findings of fact relevant to a legal ruling required during the course of

or at the conclusion of a trial: The issue raised in this case concerns the

interpretation of s.49(8) and the opinion required to ground a lawful arrest. The

garda was challenged in respect of his opinion but to be of any legal consequence

the challenge must have some relevance to the formation of the opinion under

5. The issue accordingly is whether the opinion of An Garda Síochána based solely on the

result of a roadside breath test is sufficient to found a reasonable opinion that a person is

incapable of having proper control of a mechanically propelled vehicle. The learned

District Court judge relied upon Mr Lanigan’s submission that it was held to be insufficient

by the Supreme Court in Gilmore. There, the court was concerned with Part III of the

Road Traffic (Amendment) Act, 1978, (analogous to the provisions under consideration

here). On an appeal from the District Court, the Circuit Court had stated a case to the

Supreme Court as to whether an arrest was lawful where the opinion of the garda was

formed by relying solely or partly upon the result of a breathalyser test (that is to say a

test of the same or an analogous kind on the roadside). In the course of his judgment,

“I read Part III of the 1978 Act as indicating a statutory intent that a positive result

of a breathalyser test is sufficient to justify an opinion on the part of the Garda who

carried out the test, albeit an opinion that may later turn out on a more scientific

analysis to have been wrong, that an offence under subs. (2) or subs. (3) had been

committed. And, considering that the Garda had formed the opinion that the

defendant's alcoholic condition had deprived him of the capacity to drive properly,

the Garda must a fortiori have formed the opinion that the defendant had

“… , counsel for the defendant, argued that the statutory right of arrest can be

exercised only if the Garda has formed an opinion that an offence under s: 49 has

been committed based on observation of the accused and not on the result of the

breathalyser. When ss.10 and 12 of the Act of 1978 are read together, this

contention is seen to be incorrect. The Garda is entitled to arrest a person in charge

of a mechanically propelled vehicle if he has formed the opinion from observation

that the person in charge is under the influence of an intoxicant to such an extent

as to be incapable of having proper control of the vehicle: he is also entitled to do

so on the result of the breathalyser test only. Indeed, an opinion formed on the

result of the breathalyser test will probably be more accurate than one based on

observation. The section does not require that the Garda should form his opinion on

observation: the purpose of the breathalyser test is to enable the Garda to form an

7. In light of the above I would therefore answer the question in the negative and

accordingly dismiss this appeal.

Result: Dismiss Appeal

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