A Co Dublin man has won a Supreme Court order halting his prosecution for drink driving in a case that has exposed what the court described as “a technical flaw” in how a breath testing machine selects specimens for testing.
The Lion Intoximeter machine is configured to work only if it records, in a single attempt or exhalation, two satisfactory breath specimens, sufficient to enable the quantity of alcohol to be measured.
In Frank McDonagh's case, his first exhalation into the machine resulted in no satisfactory specimens, his second exhalation resulted in just one satisfactory specimen and his third attempt resulted in two satisfactory specimens.
The configuration of the Intoximeter meant the certificate grounding the prosecution of Mr McDonagh (51), of Avondale Road, Killiney, was based on the second and third breath specimens provided by him as those specimens were recorded in a single exhalation.
Ms Justice Susan Denham said the process by which the machine only records two complete specimens provided in a single attempt can result in consequences detrimental to an accused and is unfair. The process could result in the selection of specimens which may have a higher concentration of alcohol than other specimens not selected because they were single samples.
A process which could produce a certificate under Section 17 of the Road Traffic Act 1994 grounding a prosecution in a situation where the actual first and second samples may not warrant such a certificate was not fair and not due process.
The judge said the relevant legislation udner the Road Traffic Act is penal and must be stricly construed. The obligation to give a breath specimen was an exception to the right of an accused not to incriminate themselves and the method of creating a Section 17 certificate should conform with due process. While laws creating such processes in ease of a prosecution were part and parcel of modern road traffic legislation and signifified a social policy, they must be fair.
Agreeing, Mr Justice Joseph Finnegan said there was no requirement in the law for Mr McDonagh to provide two specimens within a single cycle of the Intoximeter. He also said it was important that only two satisfactory breath samples should be taken.
In this case, the two specimens tested should have been (1) the first satisfactory specimen provided at the second attempt and the (2) the first of the two satisfactory specimens provided at the third attempt. The Act required only that the specimens be provided, not that they be provided in a manner indicated by a Garda.
The judge said the specimens provided on Mr McDonagh's first two attempts were not sufficient to enable the Intoximeter measure the concentration of alcohol in his breath and it was not until the third attempt he had complied with the legal requirement to provide satisfactory specimens. The Garda was not entitled to require him to undertake a third attempt.
The judges were addressing issues referred to the Supreme Court by a Circuit Court judge arising from the case of Mr McDonagh. On the evidence, the Supreme Court ruled the Section 17 certificate grounding the prosecution of Mr McDonagh was inadmissible and the prosecution must fail.
Ms Justice Denham also said that allowing Mr McDonagh a third attempt to provide two complete specimens could be perceived as being to his benefit as the alternative was that he could have been charged with an offence under the Road Traffic Act of failing to comply with the requirement to provide a breath sample.
The judge noted there was no evidence Mr McDonagh was in any way attempting to avoid providing two breath specimens in one cycle of the intoxilyser or seeking to frustrate the gardai. There was also no evidence the Garda conducting the test had told Mr McDonagh he must provide two complete breath specimens in one cycle of the intoxilsyer.
The three judge court was ruling on issues referred to it for determination by the Circuit Court arising from the prosecution of Mr McDonagh. The Circuit Court had heard gardaí arrested Mr McDonagh on the night of February 9th, 2002, after receiving a call that a car was allegedly being driven in a dangerous manner.
