A man arrested for alleged drink-driving should not have been put through two periods of observation to ensure he did not ingest any other substance before giving a breath sample, the High Court ruled.
Ronald Dardis was arrested on suspicion of drink-driving near his home at De Selby Rise, Tallaght, Dublin, on March 8th last.
A garda saw him reversing his vehicle and mounting a pavement, Dublin District Court heard last June when his case came before Judge Brian Smyth.
After hearing evidence, Judge Smyth dismissed the charge against Mr Dardis but the DPP was dissatisfied with that decision and the case was referred to the High Court for determination of a point of law.
On Monday, Mr Justice John Hedigan said a higher court cannot intervene where a judge of a lower court has reasonably made a finding of fact after hearing all the evidence.
An alleged error of factual analysis was presented by the DPP to the High Court, not a legal error, and the court is limited to correcting errors of law, he said.
The central issue concerned the decision of the prosecuting officer to require Mr Dardis to undergo a second 20-minute period of observation in the Garda station prior to giving a breath sample.
A 20-minute observation period is standard before such a sample is taken to ensure a suspected drink driver does not ingest any substance which would cause the breath-alcohol reading to be inaccurate.
Judge Smyth, in referring the case to the High Court, said the arresting garda decided a second observation period was necessary because, for about a minute at the end of the first period, the officer briefly looked away.
The garda believed he could not therefore be satisfied Mr Dardis had not ingested something. He also decided on a second observation period because he became aware the breath testing machine was in use at this time.
Judge Smyth said, when the sample was given, it had a concentration of 64 microgrammes of alcohol per 100 millilitres of breath as a result of which Mr Dardis was charged with driving with excess alcohol.
In his decision, Judge Smyth found the momentary looking away by the prosecuting garda was not sufficient to give rise to a reasonable apprehension Mr Dardis could have ingested “nil by mouth” which is part of the requirements. He found the second period of observation was unjustified and dismissed the case.
In his ruling, Mr Justice Hedigan said, while the High Court is limited to intervening on points of law, he agreed with the finding of the District Judge.
There was no justification for the second period of observation as a result of the momentary loss of attention during the first period by the garda and Judge Smyth was correct in dismissing the charge, he said.