Solicitors in District Courts throughout the State are likely to seek dismissal of charges of drink-driving against their clients this week. This follows a successful Supreme Court judgment against the use of the "intoxiliser". There are hundreds of such cases pending.
The way in which the breath-testing device is used was found to be illegal by the five-judge court yesterday. The court was responding to questions from Judge Bryan McMahon of the Circuit Court.
This followed a case involving a senior IDA executive, Mr Michael Finn, who was convicted following a refusal to provide a sample for the intoxiliser.
He was held in Dún Laoghaire Garda station for approximately 20 minutes before being asked to use the breath-testing device, which he then refused to do.
The case centred on the legality of the 20-minute detention and Judge McMahon had asked the Supreme Court if he was in lawful detention during that time and, if not, if any evidence subsequently obtained was inadmissible. The Supreme Court found that his detention was not legal and therefore the evidence was not admissible.
A number of Supreme Court judgments, going back to 1930, stress the importance of a legislative basis for Garda detention or, in its absence, a justification that it is "reasonable".
The judgment centred on the absence of any legislation justifying the 20-minute detention, which arose from Garda guidelines.
These have no force in law, as they are not legislation.
Mr Justice Hardiman added that no evidence was produced justifying the detention. He stressed that this did not mean such evidence could not be produced in another case alleging the same offence.
Mr Justice Murray said that the prosecution had not justified that the detention was lawful beyond reasonable doubt.
Both judgments made it clear that they were deciding on the facts of this particular case and that their conclusion did not necessarily have a general application.
Nonetheless, it makes it possible that the hundreds of cases outstanding, which have been adjourned pending the outcome of this case, could be successfully defended.
The intoxiliser is used in 60 Garda stations and has been taking over from the taking of blood and urine samples.
The Minister for Transport, Mr Brennan, was "urgently studying" the Supreme Court ruling before deciding what action to take, his spokesman said yesterday. This study would be undertaken "with a view to ensuring there is no relaxation or diminution in the campaign against drink-driving", he said.
Mr Brennan was likely to take advice from the Attorney General before deciding whether any new regulations or other action was required.