Raft of new drink driving challenges now likely

A raft of new legal challenges to the use of the Garda intoximeter is expected following yesterday's decision by the Supreme Court to quash the convictions of seven people found guilty of drink-driving offences.

About 2,000 drink-driving cases are in the District Court system awaiting the outcome of legal challenges to the Garda instrument, which is used to measure alcohol concentration in a driver's breath.

In 2002, a publican secured a High Court order restraining the District Court from proceeding to hear a drink-driving charge against him, arguing that the intoximeter was unconstitutional because there was no way of challenging the machine's findings by means of independent analysis of a breath specimen.

Last year, a Co Kildare doctor obtained a similar order amid claims that Garda radio and mobile phone frequencies could interfere with the accuracy of breath-alcohol level readings.

The High Court's decision last November to uphold the conviction of the seven people at the centre of yesterday's case had been seen as a major blow to legal challenges to the intoximeter.

But that has been reversed by the Supreme Court judgment.

In the High Court case, counsel for the DPP had argued that there was an air of unreality about the applications to inspect, saying there was no evidence that an expert would have had a reasonable prospect of establishing how the machine worked over a year earlier.

But the Supreme Court has opened the door to defendants seeking leave to inspect intoximeters, which are used at Garda stations to confirm the findings of evidential "blow-in-the-bag" or electronic testing kits.

The electronic kits continue to be used at Garda checkpoints in parts of the Republic despite being withdrawn in the Dublin area in 2002 after it emerged that signals from a new Garda digital radio system adversely affected Breathalyser readings.

The legal challenges to the intoximeter have hindered Government efforts aimed at increasing the rate of drink-driving convictions.Almost 11,200 people were caught drink-driving in 2002.

A new Government order was passed before Christmas giving gardaí powers to request a breath sample from drivers whom they believed had committed a road traffic offence. Previously, gardaí were only allowed to request a sample if they believed a driver had consumed alcohol.

Seven people who were convicted of drink-driving offences had their convictions overturned by the Supreme Court yesterday after it held that a District Court judge had unfairly refused their applications to adjourn their cases so they might inspect an intoximeter (used to obtain breath samples) at Dún Laoghaire Garda station.

The Supreme Court said procedures adopted by the District Court judge were unfair and the convictions should be quashed on grounds that the application to inspect the intoximeter was unfairly refused in the context that it was never entertained.

However, final orders in the case were adjourned until tomorrow when the five-judge court will hear submissions as to what orders should be made. Counsel for the Director of Public Prosecutions indicated yesterday that the question of remitting the case to the District Court for a retrial may be raised.

There had been a number of adjournments of the District Court proceedings before its decision in the case of the seven on November 1st, 2001.

There was also lengthy correspondence from solicitors for the seven with the Garda authorities and the Medical Bureau for Road Safety to secure facilities to inspect the intoximeter.

Giving judgment in the Supreme Court yesterday, Mr Justice Geoghegan said nothing he said should be taken as suggesting that in any or every circumstances an inspection of an intoximeter should be permitted. But the District Court judge in this case was wrong not to have entertained the application for the inspection, and properly considered it.

It was important to emphasise that the applications to enable an independent inspection of the intoximeter were made in the context that the machine at the time was a novelty, and one which effectively by its own printout could convict an accused without there being, in reality, an opportunity to rebut.

The case came before the Supreme Court via an appeal against a High Court decision of November 2003 upholding the District Court order, which was made on November 1st, 2001.

It was claimed by the applicants that an order allowing inspection of the machine was required to allow them properly prepare their defence. It was also submitted that the District Court judge failed to have due regard to correspondence by the defence with the DPP's agents or the Medical Bureau of Road Safety.