Man fails in challenge to breath test device calibration evidence

A High Court judge has ruled the DPP was not required to produce evidence concerning calibration of a breath testing device to justify a garda's decision to arrest a man for a suspected drink driving offence.

A District Court judge referred legal issues to the High Court arising from the case of Kian McGuigan, of Main Street, Lisnaskea, Co Fermanagh.

He has pleaded not guilty to a charge of driving on February 18th 2017 at Cathedral Road, Cavan, while present in his body a quantity of alcohol such that, within three hours of attempting to drive, the concentration of alcohol in his urine exceeded 67mg of alcohol per 100ml or urine.

The District Court heard Mr McGuigan was stopped by gardaí about 4.27am and asked to take a breath test.

During the District Court hearing, an issue arose as to the reasonableness or otherwise of the opinion formed by the arresting garda the arrest was justified.

District Judge Denis McLaughlin asked the High Court to decide if he was entitled to determine he was not satisfied a reasonable opinion was formed to justify the arrest following a failed breath test where the evidence failed to disclose the breath testing device had been calibrated to produce a pass/fail reading commensurate with the category of driving licence of the accused where the test was a material and/or determining factor in forming that opinion.

The case concerned application of a breath test using the Drager Alcotest 5610 device, which can be set at two levels.

The first level is for “specified drivers”, including learner drivers, and records a failed reading if the concentration of alcohol in the breath is more than 9 micrograms.

Failed test

The second level is for all other drivers, non-specified drivers, and records a failed reading if the concentration of alcohol in breath exceeds 22 micrograms.

In her judgment this week, Ms Justice Niamh Hyland noted the defence had argued, if the device is set to a level not appropriate for the driver who is tested, that driver may fail the test when, appropriately calibrated, they would pass.

Judge McLaughlin was satisfied the failed breath test was a “material” element leading to formation of the opinion to arrest the accused, she noted.

The District Judge also said no evidence was given that the device was calibrated to the appropriate level to determine, on a screening basis, the concentration of alcohol in the accused’s breath exceeded a concentration not permissible for the holder of a full driving licence, such as the accused.

Ms Justice Hyland said there was evidence of the formation of a reasonably held bona fide opinion of the arresting garda, based on the fail result for the breath specimen provided.

The defence had not cross-examined the arresting garda about calibration of the device with the effect there was no evidence before the trial judge that identified any basis for questioning the applicablity of the fail result to the accused. Because the District Court has evidence of a reasonably held bona fide opinion, and no evidence undermining formation of that opinion, that evidence is sufficient and the court is obliged to accept it, she ruled.

There was no onus on the prosecution to give positive evidence of the calibration of the device when forming the opinion, she held.

The defence, she added, will always have the option of cross-examining the garda concerning calibration and there was accordingly “no risk of injustice” to the accused.