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D.P.P v. Curry [2002] IEHC 48 (14 March 2002)

THE HIGH COURT

2001 No 889SS

IN THE MATTER OF SECTION 52 (1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961 (No. 39 OF 1961)

BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR

And

SHEILA CURRY

ACCUSED

JUDGMENT delivered the 14th day of March 2002 by Carney J.

This is a case stated by Judge James Paul McDonnell, a Judge of the District Court assigned to the Dublin Metropolitan District, pursuant to Section 52 of the Courts (Supplemental Provisions) Act, 1961 for the opinion of the High Court.

THE CASE STATED.

1. At a sitting of the District Court at Tallaght Courthouse, Westpark, Tallaght, Dublin 24 on December, 4th, 2000, Sheila Curry, the accused herein (hereinafter referred to as "the Accused") appeared before the Court to answer a complaint the subject matter of a summons served upon her in which she was charged with the offence that, on June 11th, 2000, at Sundale Park, Tallaght in the Dublin Metropolitan District, a public place, she drove a mechanically propelled vehicle registered number 89 LH 709 while there was present in her body a quantity of alcohol such that, within three hours after driving the said vehicle, the concentration of alcohol in her breath exceeded a concentration of 35 microgrammes of alcohol per 100 millilitres of breath contrary to Section 49 (4) and 6 (a) of the Road Traffic Act, 1961 as inserted by Section 10 of the Road Traffic Act, 1994.
The facts as proved or admitted were as follows:

(a) At approximately 7.40 p.m. on June 11th, 2000, Garda Fergal O'Connor of Tallaght Garda Station, County Dublin, was on mobile patrol in the Sundale area of Tallaght. He observed motor vehicle registered number 89 LH 709 emerging from a car park near the entrance to Dolly Heffernan's Public House onto Sundale Park, Tallaght, a public place. He observed that the vehicle was being driven in an erratic manner. Garda O'Connor signalled the driver to stop.

(b) Garda O'Connor approached the car and spoke with the driver, who identified herself as Sheila Currry of 29 Kiltalown Heights, Tallaght, Dublin 24. In the course of their conversation, Garda O'Connor got a strong smell of alcohol from the Accused's breath. On the basis of his observations Garda O'Connor formed the opinion that the Accused had consumed an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled vehicle in a public place.

(c) At 7.45 p.m., Garda O'Connor informed the Accused of his opinion. He then informed her that he was arresting her under Section 49 (8) of the Road Traffic Acts, 1961 to 1995 for having committed an offence contrary to Section 49(2), 49 (3) or 49 (4) of the Road Traffic Acts, 1961 to 1995. He cautioned her in the usual manner and explained to her that she was being arrested for drunk driving.

(d) The Accused was then conveyed to Tallaght Garda Station, arriving there at 7.55 p.m. The Accused was placed in the charge of Sergeant Des Woods, Member in charge of Tallaght Garda Station. Garda O'Connor informed Sergeant Woods that he had arrested the Accused under Section 49 (8) of the Road Traffic Acts, 1961 to 1995. Sergeant Woods completed the custody record in respect of the Accused and complied with Section 8 (1) of the Criminal Justice (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987. Sergeant Woods handed the Accused a copy of Form C.72 (s) - Notice of Rights. Subsequently Garda O'Connor was furnished with a copy of the Section 17 Statement.

(e) At 20.20 hrs., Garda Lorraine Travers joined Garda O'Connor in the room in Tallaght Garda Station in which the Intoximeter EC/IR was located. Garda Travers introduced herself to the Accused. She explained to the Accused that the Intoximeter EC/IR was designed for the purpose of determining the concentration of alcohol in the breath. Garda Travers then required the Accused, under Section 13 (1) (a) of the Road Traffic Act, 1994, to provide two specimens of her breath by exhaling into the apparatus. She informed the Accused that a failure or refusal to comply with the requirement was an offence and outlined the penalties that could be imposed in respect thereof.

(f) Garda Travers entered details of the Accused's name, address and the offence charged. A new mouthpiece was fitted to the Intoximeter EC/IR. Garda Travers explained to the Accused the manner in which she was to provide the specimen of her breath into the Intoximeter. At 8.42 p.m. the Accused provided her first specimen of breath. She provided a second specimen of her breath at 8.44 p.m. The provisions of Section 17 of the Road Traffic Act, 1994 were complied with. Garda Travers stated that the Accused acknowledged receipt of both copies of the Section 17 Statement. She retained one copy of the Statement. Garda Travers handed the other copy to Garda O'Connor. Garda Travers stated that the Section 17 Statement indicated a reading for the first breath sample of 108 microgrammes of alcohol per 100 millilitres and for the second breath sample of 117 microgrammes of alcohol per 100 millilitres of breath. She then said that the reading was 89 microgrammes of alcohol per 100 millilitres of breath.

(g) Under cross-examination by Mr. Tunney, Solicitor for the Accused, Garda Travers stated that the first reading on the statement was a simulator check. The second reading was the first breath sample given by the Accused. The third reading was a simulator check. The fourth reading was a second breath sample given by the Accused.

2. At the conclusion of evidence, Mr. Tunney submitted that Section 17 (1) of the Road Traffic Act, 1994 provides that where, consequent on a requirement under Section 13 (1)(a) a person provides two specimens of his breath and the apparatus referred to in that Section determines the concentration of alcohol in each specimen -

(a) in case the apparatus determines that each specimen has the same concentration of alcohol, either specimen and

(b) in case the apparatus determines that each specimen has a different concentration of alcohol.

3. The specimen with the lower concentration of alcohol shall be taken into account for the purposes of Section 49 (4) and 50(4) of the Principal Act, and the other specimen shall be disregarded. Mr. Tunney submitted that the Prosecutor could rely only upon the two actual breath samples for the purposes of a conviction and not the third reading which was based upon a calculation not provided for in the Section.

3. Mr. O'Neill, Solicitor for the Prosecution, contended that only two specimens of breath were provided by the Accused as required by Section 17 of the Road Traffic Act, 1994. Mr. O'Neill contended that the lower of the two specimens, which is to be taken into account for the purposes of Section 49 (4) and 50 (4) of the Principal Act, is reduced by 17% in order to give an accurate reading of the concentration of alcohol in the accused persons breath. Mr. O'Neill contended that the expression "shall be taken into account" in Section 17 of the Road Traffic Act, 1994 permits this calculation to be made. Mr. O'Neill contended that there was no other statutory or legal authority for a reduction of 17%.

4. On foot of the foregoing findings of fact the Judge of the District Court sought the opinion of the High Court on the following questions:-

(i) Whether it is legally permissible for the Prosecutor (whether by himself, his servants or agents) to programme and operate the Intoximeter EC/IR so as to deduct 17% from two co-equal readings, or to deduct 17% from the lower of the two readings, for the purposes of a criminal prosecution pursuant to Section 17 of the Road Traffic Act, 1994.

(ii) Whether the figure calculated by the Intoximeter EC/IR by the deduction of 17% is admissible in Court for the purposes of Section 17 of the Road Traffic Act, 1994.

(iii) Whether he is entitled to convict of a criminal offence under Section 17 of the Road Traffic Act, 1994 upon the basis of the evidence tendered in this case.

Relevant Provisions of the Road Traffic Act 1994

5. The relevant parts of Section 13 of the Road Traffic Act 1994, headed "Obligation to provide specimen following arrest", are as follows:

(1) Where a person is arrested under Section 49 (8) or 50 (10) of the Principal Act or Section 12 (3), or where a person is arrested under Section 53 (6), 106 (3A) or 112 (6) of the Principal Act and a member of the Garda Síochána is of opinion that the person has consumed an intoxicant, a member of the Garda Síochána may, at a Garda Síochána Station, at his discretion, do either or both of the following :-

(a) require the person to provide, by exhaling into an apparatus for determining the concentration of alcohol in the breath, two specimens of his breath and may indicate the manner in which he is to comply with the requirement.

(2) In a prosecution for an offence under this Part or under Section 49 or 50 of the Principal Act it shall be presumed, until the contrary is shown, that an apparatus provided by a member of the Garda Síochána for the purpose of enabling a person to provide two specimens of breath pursuant to this Section is an apparatus for determining the concentration of alcohol in the breath.

6. Section 17, headed "Procedure following provision of breath specimen under
7. Section 13", provides that:

(1) Where, consequent on a requirement under Section 13 (1) (a) of him, a person provides two specimens of his breath and the apparatus referred to in that Section determines the concentration of alcohol in each specimen -

(a) in case the apparatus determines that each specimen has the same concentration of alcohol, either specimen, and

(b) in case the apparatus determines that each specimen has a different concentration of alcohol, the specimen with the lower concentration of alcohol, shall be taken into account for the purposes of Sections 49 (4) and 50 (4) of the Principal Act and the other specimen shall be disregarded.

(2) Where the apparatus referred to in Section 13 (1) determines that in respect of the specimen of breath to be taken into account as aforesaid the person may have contravened Section 49 (4) or 50 (4) of the Principal Act, he shall be supplied forthwith by a member of the Garda Síochána with two identical statements, automatically produced by the said apparatus in the prescribed form and duly completed by the member in the prescribed manner, stating the concentration of alcohol in the said specimen determined by the said apparatus.

(3) On receipt of the statements aforesaid, the person shall on being requested so to do by the member aforesaid --

(a) forthwith acknowledge such receipt by placing his signature on each statement, and

(b) thereupon return either of the statements to the member.

(4) A person who refuses or fails to comply with subsection (3) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500 or to imprisonment for a term not exceeding three months or to both.

(5) Section 21 (1) shall apply to a statement under this Section as respects which there has been a failure to comply with subsection (3) (a) as it applies to a duly completed Statement under this Section.

8. Section 21 (1) of the Road Traffic Act 1994 provides that -

A duly completed Statement purporting to have been supplied under Section 17 shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Acts, 1961 to 1994, of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the member of the Garda Síochána concerned with the requirements imposed on him by or under this Part prior to and in connection with the supply by him pursuant to Section 17 (2) of such statement.

The First Question

9. I accept the submission of Mr. Collins for the Prosecution that there was no third specimen or third reading. Two specimens were provided in accordance with the Road Traffic Act, 1994. The intoximeter used the lower of the two as a basis for the figure of 89 microgrammes that it arrived at.
10. Section 17 (1) provides that where, as here, the apparatus determines that each specimen has a different concentration of alcohol, the specimen with the lower concentration of alcohol is to be taken into account for the purposes of Section 49(4) and the other specimen is to be disregarded. The italicised text does not exclude the possibility that the concentration of alcohol in the breath for the purposes of that provision could be less than the actual reading of alcohol in the breath recorded by the intoximeter.
11. The calculation effected by the intoximeter has the effect of providing a margin of error for the benefit of the accused. Whilst it may be the case that the prosecutor is not obliged to provide for such a margin, there is nothing to indicate that the fact of its provision is in any way unlawful. The deduction is incapable of bringing about the conviction of an innocent person. The consequence of the deduction is that persons who might otherwise be deemed to have breached Section 49 (4) or 50 (4) of the Road Traffic Act may not be convicted of such a charge. The deduction procedure only operates in favour of an accused. In the instant case the Accused's concentration of alcohol was too high for her to benefit from the deduction.
12. In the premises, the first question is answered in the affirmative.

The Second and Third Questions

13. In D. P. P. - v - Fennelly (Supreme Court unreported judgment delivered extempore on the 2nd day of December 1998 which was a blood alcohol case) O'Flaherty J. said :-

"However there was a mishap in the course of the hearing because Sergeant Tracey when he handed in the certificate from the Medical Bureau of Road Safety into the court inadvertently stated that the certificate from the Bureau gave a reading that the sample as analysed contained 278 ml. alcohol per 100 ml. of urine. But it is questionable whether this was evidence at all. It was certainly something he need not have said because s. 21(3) of the Road Traffic Act, 1994 provides :-

'A certificate expressed to have been issued under Section 19 shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Acts, 1961 to 1994, of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the Bureau with the requirements imposed on it or under this Part or Part V of the Act of 1968'."

14. These questions may be considered together. The answers thereto are to be found in Section 21 (1) of the Road Traffic Act, 1994. The presumptions created therein, which have not been displaced by evidence led in the District Court, may be invoked here with a view to each of these questions being answered in the affirmative.
DR889SS(JC)