A garda was not obliged to carry out a roadside breath test before he could lawfully arrest a man for suspected drink driving after observing the man’s car being driven erratically and on a grass verge, detecting a strong smell of alcohol from him and noting his speech was slurred, the president of the High Court has ruled.
Lawyers for Colman Moran, Crowe Street, Gort, Co Galway, had argued the District Court must acquit him of the charge of drink driving because, they alleged, his arrest was unlawful arising from the prior failure to carry out a roadside breath test.
The Director of Public Prosecution disputed that claim and the District Court asked the High Court to determine various legal issues arising under the Road Traffic Act 2010.
Erratic manner
In his judgment yesterday, Mr Justice Nicholas Kearns said the evidence was the arresting garda, Garda Darren Paul Lynch, observed Mr Moran driving at 3.30pm on January 6th, 2013, at Cloonanaha, Gort, in an erratic and dangerous manner whereby his car was failing to maintain a steady course on the road and had veered onto the grass verge at the roadside.
Upon stopping the vehicle, Garda Lynch detected a strong smell of alcohol and noticed the driver’s speech was slurred, the judge said.
Based on those factors, Garda Lynch formed the “entirely reasonable independent opinion” the defendant might be intoxicated and therefore arrested him for the purpose of administering an evidential breath test at Gort Garda station, the judge said.
“The defendant’s level of intoxication was immediately apparent to Garda Lynch so that a preliminary breath test was not necessary in this case to justify an arrest.”
Reading
A breath test was administered at Gort station at 4.22pm and Mr Moran gave two samples of his breath with an overall reading of 95mg/100ml, he said. Mr Moran was later charged that the concentration of alcohol in his breath exceeded 22mg per 100ml contrary to section 4 of the Road Traffic Act.
Mr Justice Kearns was asked by the District Court to consider issues concerning construction of section 9.2 of the Road Traffic Act 2010 relating to the administration of breath tests in circumstances of suspected drink driving.
The judge said the wording of section 9.2 is “clear and unambiguous” and makes clear that where a Garda is of the opinion a person should be arrested on suspicion of an offence, the mandatory duty to administer a preliminary breath test does not arise.
That interpretation did not fall foul of the principles of strict construction of penal statutes and did no violence to the intention of the legislature, he added.