Ruling on breath samples upheld

THE SUPREME Court has ruled that the failure of a garda to grant a man’s request for access to a solicitor, made after he was asked to provide two breath samples, entitled a District Court judge to dismiss a charge against him of refusing to provide the samples.

The five-judge court yesterday rejected the DPP’s challenge to the January 2008 ruling dismissing the charge of refusing to provide two breath samples at Blanchardstown Garda station.

The man was brought in custody to the Garda station at 2.18am on June 9th, 2007, where he was given a Notice of Rights and Form C72 which provide that at any time while in custody a person may consult and communicate privately with a solicitor.

After some delay as no garda in the station was trained to operate an Intoxilyser machine, a garda so trained came to the station and asked the man to provide a breath sample as required under Section 13 of the Road Traffic Act 1994.

When the man replied he wanted to speak to a solicitor, the garda said he could do so as soon as he provided the sample.

Lawyers for the man later successfully applied to the District Court to dismiss the charge of refusing to provide samples on the grounds the man was denied a right of reasonable access to a solicitor and his refusal to provide samples may have occurred as a consequence of the breach of that right.

The District judge noted a lawyer would have advised him to provide a sample because, depending on the Intoxilyser reading, he might not have been charged at all or been subject to a shorter driving ban than the four years for refusal to provide a sample.

The High Court later upheld the District judge’s entitlement to dismiss the charge in its decision on a case of appeal.

Giving the Supreme Court judgment dismissing the DPP’s appeal against the High Court finding, Mr Justice Adrian Hardiman said that where a person is detained in consequence of an arrest it has long been established they are entitled to consult a solicitor.

In this case the sole reason for refusing the request was the garda’s mistaken belief the whole Intoxilsyer specimen-taking process would be aborted if it were delayed to allow consultation with a solicitor and the garda would not be legally entitled to make another request for a specimen.

The judge said this mistaken belief was undoubtedly the source of all the difficulty in this case but was an honest error and not invoked to maliciously deprive the man of his right to a solicitor.

While a detained person’s right of access to a solicitor was not of instant access, a salient feature of this case was gardaí had told the man from the outset he could request a solicitor “at any time” while in custody.

The DPP did not dispute there was a breach of the requirements of the statutory regulation for access to a solicitor but argued the reason given by the garda for non-compliance was reasonable if erroneous.

He said the Supreme Court’s task was to inquire whether the findings of the District judge were open to her [the judge]on the evidence. The District judge thought it not unreasonable a person confronted with a demand for a breath sample, expressed in technical legal terms, should then request a solicitor.

The District judge, he found, was entitled to find the man was reasonably entitled to rely literally on what gardaí told him, that he could seek advice from a solicitor at any time while in custody. The judge was also entitled to find a solicitor’s advice would have been of benefit to him and he was not given reasonable access to it.

On these facts found by the District judge, it was open to her to dismiss the charge.

There was no comment from the Garda authorities about the judgment. A spokesman said the laws relating to drink driving were the responsiblity of the Department of Transport. A spokeswoman for the Department of Transport said it would need to study the ruling in detail before making any comment.