A ruling quashing a man’s drink-driving conviction over issues concerning the chain of custody of his blood sample is of “huge significance”, counsel for the Director of Public Prosecutions (DPP) has told the Supreme Court.
A “very large” number of drink-driving prosecutions are on hold pending the director’s appeal against the “problematic” High Court decision, senior counsel Eilis Brennan said when opening the appeal on Tuesday.
After hearing both sides, the court reserved its judgment to a later date.
The appeal concerns legal requirements relating to the custody of blood and urine specimens before their analysis by the Medical Bureau of Road Safety (MBRS).
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The courts annually deal with up to 7,000 drink-driving prosecutions, which are based on blood or urine specimens.
Last July, Judge Sara Phelan of the High Court ruled that because of a break in the chain of custody of a man’s blood specimen, taken after his arrest for suspected drink driving, he was entitled to have his conviction and two-year driving ban overturned.
The specimen was taken on August 21st, 2022, by a doctor, who halved it into two glass bottles before sealing the bottles in separate containers labelled with the man’s name and the date.
The doctor sealed both containers before handing them to the arresting garda and completed a certificate, required under section 15 of the Road Traffic Act 2010, relating to the taking and sealing of the specimen.
The man retained one container and the garda put the second in a box with the section 15 form before sealing the box and posting it off to be analysed.
The MBRS certified that the specimen contained a concentration of 126ml of alcohol per 100ml of blood, more than twice the legal limit of 50ml of alcohol per 100ml of blood.
During the District Court trial, the garda witness did not provide direct evidence about the whereabouts of the container, or about who had access to it, before it was posted.
The District Court, in refusing a defence application to dismiss the case over the failure to adduce such evidence, relied on statutory presumptions in the Road Traffic Acts that the completed certificates regarding the sample were proof of the facts stated in them unless the contrary was shown.
On appeal, the High Court ruled the statutory presumptions did not extend to covering the chain of custody after the container was sealed. The prosecution was required to provide evidence on storage of the specimen, from sealing to posting, to exclude the possibility of interference with it, Phelan said.
In her submissions on Tuesday, Brennan gave each of the five judges a sealed kit box of the type used by doctors and gardaí when dealing with blood and urine samples.
The DPP is entitled to rely on the statutory presumptions that the certificates relating to the sample were sufficient evidence of its integrity unless an accused can show otherwise, she submitted.
The chain of custody is “a factual matter to be decided on a case-by-case basis”. The “logical follow-on” from the “problematic” High Court judgment was that several witnesses might have to be called to prove evidence of the chain of custody, she said.
The chain might have to be proven, not only while the sample was in Garda custody, but potentially also during transit via the postal system to the MBRS, counsel said.
In submissions for the respondent, senior counsel Philip Sheehan argued that showing continuity of possession of the sample from seizure to analysis is required for “authenticity and reliability”.
The sealing of the sample was “a safeguard” but “not a golden bullet”, and a chain of custody evidence is necessary, he said. If the chain broke down, the evidence was rendered unreliable, he argued.
The statutory presumptions did not extend to the Garda chain of evidence and the sample which grounded the certificate had not been “authenticated”, he said.
Judge Iseult O’Malley remarked that counsel’s client had the necessary evidence himself because he had a container with half of his blood sample. That could be utilised to make any case that something had gone wrong, she said.
