In the matter of Section 2 of the Summary Jurisdiction Act 1857.
And in the matter of Section 51 of the Courts (Supplemental Provisions) Act 1961.
The Director of Public Prosecutions (at the suit of Garda Anthony O'Driscoll) (appellant) v Noel O'Connor (respondent).
Case Stated - Road traffic - Whether the respondent had been given reasonable opportunity to provide a urine specimen - Whether option to provide a blood specimen was a proper option - Whether the Director of Public Prosecutions was entitled to bring the appeal - Road Traffic Act 1994, section 13(1)(b) - Summary Jurisdiction Act 1857, section 2.
The High Court (Mr Justice Geoghegan); judgment delivered 10 July 1998.
The option to give a urine sample if it can be given is a condition precedent to any absolute obligation to give a blood sample.
The High Court so held in refusing the appeal, saying the District Court Judge had taken the view that in all the surrounding circumstances the respondent was not given sufficient opportunity to exercise his option to give a urine sample.
Adrienne Egan BL for the appellant; Maeve Boyle BL for the respondent.
Mr Justice Geoghegan said the matter was an appeal by way of case stated from an order of District Judge Mangan dismissing a charge under section 49 of the 1961 Act. The charge in question was for driving a mechanically propelled vehicle in a public place while there was present in the respondent's body a quantity of alcohol such that within three hours after so driving the concentration of alcohol in his blood exceeded a concentration of 80 milligrammes of alcohol per 100 millilitres of blood.
Mr Justice Geoghegan said the case stated was less than satisfactory in a number of respects. Firstly, under the usual heading of "the facts proved or admitted" alleged facts are included which not only were not proved or admitted but were actually disproved. Paragraph 2 subparagraph (h) which was part of the "facts proved or admitted" read as follows "At 2.40 a.m. Garda O' Driscoll told the respondent that in accordance with section 13(1)(b) of the 1994 Act he was requiring him to permit Dr Maloney, a designated doctor, take from him a specimen of his blood, or at his option, he would provide a specimen of his urine. He also informed him that if he failed or refused to comply with the requirement he would be committing an offence and would be liable on summary conviction to a fine not exceeding £1,000 or six months imprisonment or both. He asked the respondent if he understood and he said he did. The respondent opted to allow the doctor to take from him a blood specimen."
Mr Justice Geoghegan said this in fact was not the case because in subparagraph (l) the following appeared: "Under cross- examination, Garda O'Driscoll stated that initially the respondent had opted to provide the urine. This was at approximately 2.40 a.m. During the next 15 minutes he was unable to do so. In this regard he was apparently co-operative, but extremely nervous. Various ploys were used to assist the respondent to provide a urine sample. After approximately 15 minutes, the doctor concluded that the Respondent was not going to be able to provide a urine sample and so Garda O'Driscoll told him that he would have to give him blood. Garda O'Driscoll stated that Dr Maloney was under pressure to attend another Garda station at this stage. It was in those circumstances that the respondent opted to provide a blood specimen."
Mr Justice Geoghegan said it was clear, and the District Judge had accepted, that the respondent did not opt to provide a blood specimen but rather opted to provide a urine specimen. The fact this had only came out in cross-examination probably meant that the garda's memory was jogged at that stage whereas when he gave his direct evidence he was working in inaccurate notes. Mr Justice Geoghegan said that this was not a factor he could take into account directly but it may have been open to the District Judge to draw that inference. Regardless of whether such an inference was justified or not, it was clear that the blood sample was given ultimately only because the respondent was not able to give a urine sample within the permitted time. Mr Justice Geoghegan said that according to the Supreme Court in DPP (Coughlan) v Swan [1994] 1 ILRM 314, the statutory obligation is to permit a designated medical practitioner to take a specimen of the blood but the person is given an option of providing a specimen of urine. If the option is availed of, it relieves the person form the obligation to permit a specimen of his blood to be taken from him. If the person finds that he cannot provide a specimen of urine, the obligation to permit the taking of the specimen of blood revives and in such circumstances a refusal by him to permit the taking of blood is an offence. Mr Justice Blayney had made it clear in his judgment that before the defendant could be convicted of the offence with which he was charged, the prosecution had to prove that the doctor made a requirement of him in relation to the provision of a specimen of urine and that the defendant failed to comply.
Mr Justice Geoghegan said that in this particular case Judge Mangan had dismissed the charge for the reasons set out in the following paragraph "I was of the view that the respondent was not given a reasonable opportunity to provide a urine sample. It therefore followed that the subsequent `option' for blood was not a proper option. In this regard I noted that the respondent had been allowed 22 minutes at the outset. I was of the view that the respondent should have been allowed a minimum of 30 minutes within which to provide a urine specimen. In this regard I noted that the prosecuting garda had very fairly stated under cross-examination that the doctor had been under pressure and this had been conveyed to the respondent, and had also agreed that the respondent had been genuinely agitated by the idea of giving a blood specimen." Judge Mangan then went on to seek the opinion of the High Court as to whether he was correct in law in dismissing the charge and, in particular, whether he was correct in law in holding that the respondent had not been given a reasonable opportunity to provide a urine specimen so that the provision of a blood specimen was not a proper option.
Mr Justice Geoghegan said that the second unsatisfactory feature of the case stated was the reference to 22 minutes which the DPP was unable to explain. Earlier in the case stated a 15 minute period had been referred to. In this regard Mr Justice Geoghegan said he would not send the case stated back to the District Court Judge for clarification as he took a particular view of the case. The decision of the District Court Judge in all the circumstances did not involve any question of law and could not be said to be perverse. In these circumstances, the DPP was not entitled to bring the appeal. Mr Justice Geoghegan, after considering section 2 of the 1857 Act, said that the District Judge could not be said to have fallen into any error "in point of law". The District Judge was not holding as a matter of law that in every case 30 minutes has to be allowed to provide a urine specimen. Such a proposition would be unstateable and if it had been the intention of the Oireachtas the section would have specified it. The reference to the 30 minutes is in the context of other matters which the District Court Judge refers to, including above all the pressure which was apparently exerted on the respondent because of the doctor's other engagements. Judge Mangan was therefore talking of 30 minutes having regard to all the surrounding circumstances in the particular case. Mr Justice Geoghegan said he could not possibly say that such a view was not open for the District Court Judge to take nor could he say that such a view was in any way perverse having regard to the surrounding factors and therefore there was no question of law to be determined.
Mr Justice Geoghegan said the his was aware that the certificate of analysis from the Medical Bureau indicated that the respondent was substantially over the limit but it would be wrong to take this into account. It is now well established that the permitting of the exercise of the option to give a urine sample, if it can be given, is a condition precedent to any absolute obligation to give a blood sample. In this case the District Judge took the view that in all the surrounding circumstances the respondent was not given sufficient opportunity to exercise his option to give the urine sample and Mr Justice Geoghegan said he could not hold that District Judge was disentitled to take that view for the reasons indicated previously. Mr Justice Geoghegan said he would discuss with counsel whether the appeal should be dismissed with a "yes" answer or simply struck out.
Solicitors: Michael A. Buckley, Chief State Solicitor, for the appellant; Maher McAlinden Gallagher (Dublin) for the respondent.
