THE SUPREME Court has cleared the way for the trial of nightclub owner Robbie Fox for allegedly being in charge of a vehicle when there was excess alcohol on his breath in the early morning of June 4th, 2002.
In 2003, the District Court dismissed the prosecution of Mr Fox, of Eagle Valley, Powerscourt, Co Wicklow, after ruling that, when a sample of his breath was taken at Pearse Street Garda station in Dublin, he was in unlawful detention at the time.
The District Court heard evidence from a garda that she observed a silver Mercedes convertible car parked at Burlington Road, Dublin, at 2.30am on June 4th, 2002, with the driver slumped over the wheel, and noticed the engine was running.
When she spoke to the driver, he gave his name as Robbie Fox, of Eagle Valley, Powerscourt, Co Wicklow, and she got a strong smell of intoxicating liquor, the garda said. She arrested Mr Fox and brought him to Pearse Street station, where he later gave two breath specimens.
The District Court later struck out the summons against Mr Fox after finding he was in unlawful detention at the time he was asked to give a breath specimen, because at that point he had been observed by gardaí for 27 minutes rather than the 20-minute period which must be allowed pass to ensure a reliable breath test.
Yesterday the three-judge Supreme Court granted an appeal by the DPP against this District Court decision. The District Court had held that, as there was no evidence or explanation for the additional seven minutes, the detention of Mr Fox at the time the sample was taken was unlawful and therefore the evidence of the results of the sample was inadmissible.
The Chief Justice, Mr Justice John Murray, said it was not disputed that Mr Fox's detention for the first 20 minutes of the 27-minute period of observation of him was lawful.
The case therefore related to only seven minutes out of the entire period of two hours and five minutes of Mr Fox's detention.
Official guidelines for gardaí in relation to breath tests by means of an Intoxilyzer provided that a person must be detained for a minimum of 20 minutes for the purposes of providing a breath specimen, the Chief Justice noted. This was to ensure nothing passed into their mouth that would affect the test.
In this case, 27 minutes elapsed before Mr Fox was asked to provide two breath specimens. The garda involved had allowed the period to run seven minutes over.
The Chief Justice said he believed it was "simply a matter of delay" and the issue was whether the delay was so unreasonable it rendered an otherwise lawful custody unlawful.
As there was no evidence of malicious intent or purpose, he could not consider the delay so unreasonable as to render the detention unlawful.