Analysis: The core of the challenge to the intoxiliser was the issue of the legality of Garda detention, writes Carol Coulter, Legal Affairs Correspondent
The Supreme Court was careful yesterday not to give the green light to blanket challenges to the intoxiliser. Nor can those who have already been convicted under this legislation be very optimistic of successful appeals against their conviction.
Both judgments centred on a fundamental point of Irish constitutional law - people may not be arrested and detained by members of the Garda Síochána without good reason, which should either be spelt out in law or justified in evidence given to a court.
The Garda guidelines on the use of the intoxiliser are that a person is detained for observation for 20 minutes before the breath test is administered, to verify that the person does not take any food or drink.
Mr Justice Hardiman commented: "The difficulty in this case is that the guard's direct evidence gave no reason whatever for the interval during which nothing at all occurred."
He went on to say that when he was challenged, the guard simply referred to a Garda guideline, which was not in itself produced.Even if it had been, it would also have been necessary to prove that it was an objectively reasonable guideline, given that it was nowhere in the legislation.
"Whether these are internal Garda guidelines or guidelines for the manufacturers of the breathalysing device or guidelines from some medical or scientific adviser or from the DPP, does not appear. It is, however, clear that they are not contained in any statute or statutory instrument or regulation on the treatment of persons in custody," he said.
As both judgments pointed out, since 1930 the Irish courts have stressed the necessity for a person to be brought before the courts as soon as possible after his or her arrest. Any unreasonable delay, for example in questioning, has been found to be illegal, and any evidence thus obtained found to be inadmissible. However, if a delay was shown to be reasonable - for example, because the person was arrested late at night, and could not be brought before a judge until the morning - was permissible.
Mr Justice Hardiman said there was insufficient evidence presented in this case to allow the Circuit Court judge to decide whether the 20 minutes was or was not reasonable in the circumstances.
He stressed that this did not mean that in another case involving the same offence there might not be sufficient evidence on the need for the delay. The decision was on the facts of this particular case.
This leaves open the possibility of the State producing evidence in future cases to justify the 20- minute detention. This could take the form of bringing in scientific evidence about the necessity for the delay, or bringing forward manufacturers' guidelines justifying it, though such guidelines would have to backed up by direct evidence from their author.
Nonetheless, those who were arrested and had their cases adjourned pending this challenge are likely now to seek to have them dismissed. The State is likely to seek adjournments to consider the judgments, and prepare what evidence it can to meet them.
But this will be no substitute for clear legislation on the subject, stating that it is permissible to detain a person in order to get a reliable sample.
Those who have already been convicted may try to appeal their convictions. But the courts do not generally look kindly on appellants who raise a point of law they did not raise during their trial. Consequently, they are not likely to be successful if they did not question the legality of their detention at the time.
This is not the first challenge to the intoxiliser, and will not be the last. Already the courts have been asked to find it was unlawful that the intoxiliser's conclusions could not be independently verified, and they refused. They still have to decide if the use of a mobile phone in Garda stations can affect it.
Legal team: How the loophole was noticed
Both the solicitor in the Finn case, Mr David Montgomery, and senior counsel Mr Michael O'Higgins gave credit for this legal point in the Supreme Court challenge to the junior counsel in the case, Mr Mícheál P. O'Higgins.
"It was a fluke. I didn't think of it in the District Court, and it came to me on my feet in the Circuit Court," he told The Irish Times. "But I'd been thinking up a general detention point for a while. I didn't hold out much hope, but Judge Bryan McMahon saw it and raised it."
Mr O'Higgins has been in practice for 11 years.