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D.P.P. v. O'Connor [1999] IESC 115 (9th March, 1999)
THE
SUPREME COURT
O
‘FLAHERTY J
BARRINGTON
J
KEANE
J
MURPHY
J
BARRON
J
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
BETWEEN:
THE
DIRECTOR OF PUBLIC PROSECUTIONS
(AT
THE SUIT OF GARDA ANTHONY O’DRISCOLL)
APPELLANT
AND
NOEL
O’CONNOR
RESPONDENT
JUDGMENT
OF MR JUSTICE FRANCIS D MURPHY DELIVERED THE 9TH DAY OF MARCH 1999 [Nem. Diss.]
1. The
question of law - if it is a question of law - which arises in this case is the
determination of the time limit within which a urine sample must be provided in
accordance with the requirements of section 13(1)(b)(ii) of the Road Traffic
Act 1994.
2. The
question arises from a case stated by Joseph Mangan, a Judge of the District
Court, on the 22nd day of January 1997 pursuant to the above entitled enactments.
3. The
factual background to the issue as determined by the learned Judge is as
follows. At the sitting of the District Court on the 8th February 1996 the
Respondent. Noel O’Connor, attended to answer the charge of the Director
that on the 17th September 1995 at Herbert Place in the City of Dublin that the
Respondent had driven a mechanically propelled vehicle in a public place whilst
there was present in his body a quantity of alcohol, such that, within three
hours after so driving, the concentration of alcohol in his blood exceeded a
concentration of 80mg of alcohol per 100ml of blood. The facts proved or
admitted are set out fully in the case stated but may be summarised as follows.
4. The
Garda at whose suit the prosecution was brought, Garda O’Driscoll, gave
evidence that on the 17th September 1995 he was on duty in a patrol car. At
1.40am he observed a motor car stopped at the traffic lights at Baggot Street
Bridge. The vehicle failed to move off when the lights changed to green. The
lights changed to red and when the green light came back on the car again
failed to move off. Garda O’Driscoll got out of the patrol car and spoke
to the driver. The Garda noticed that there was a very strong smell of alcohol
from the car. The Respondent got out from the car. He was unsteady on his feet.
He admitted to having some drinks. At 1.45 am the Garda arrested the Respondent
and brought him to Harcourt Terrace Garda Station where they arrived at 1.50am.
Dr James Maloney, a designated doctor, was contacted at 1.5l am. Dr Maloney
arrived at the station at 2.35am. At 2.40am Garda O’Driscoll informed the
Respondent that he was requiring him to permit Dr Maloney to take a specimen of
his blood or at his, the Respondent’s, option to provide a specimen of
urine.
5. Under
cross-examination Garda O’Driscoll stated that initially the Respondent
had opted to
-2-
provide
a urine sample. This was at approximately 2.40am. During the next fifteen
minutes he was unable to do so. The Garda agreed that the Respondent sought to
be co-operative but was extremely nervous. The Respondent was unable to provide
a urine sample. After fifteen minutes the Doctor, who was admittedly under
pressure to attend at another garda station, concluded that the Respondent was
not going to be able to provide a urine sample and in those circumstances Garda
O’Driscoll informed the Respondent he would have to provide a blood
specimen which the Respondent agreed to do. The blood specimen was taken at
3.04am and completed at 3.l0am.
6. In
those circumstances the solicitor on behalf of the Respondent submitted, among
other things, that the Respondent had opted to provide urine and not blood and
that he the Respondent had fully complied with both the Garda and the
Doctor’s requirement in this regard. He maintained that once his client
opted for urine there was no obligation on him to provide a blood specimen.
7. The
learned Judge of the District Court dismissed the case against the Respondent
on the grounds which he stated as follows:-
“I
was of the view th
at
the Respondent was not given a reasonable opportunity to provide a urine
sample. ft therefore followed that the subsequent “option “for
blood was not a proper option. In this regard, I noted that the Respondent had
been allowed twenty-two minutes at the outset. I was of the view that the
Respondent should have been allotted a minimum of thirty minutes within which
to provide a urine specimen.”
-3-
8. At
the request of the Director of Public Prosecutions the Judge of the District
Court sought the opinion of the High Court as to whether he was correct in law.
9. In
his judgment delivered the 10th day of July 1998 Mr Justice Geoghegan concluded
that the learned Judge
Could
not be said to have fallen into any error, in point of law
“.
The learned Judge of the High Court concluded that:-
I
am quite certain that he (the District Judge) was not holding as a matter of
law that in every case thirty minutes has to be allowed to provide a urine
specimen. Such a proposition would, in my view, be clear/v unstateable and if
it had been the intention of the Oireachtas the section would have spec fled
it. When a District Judge makes the reference to thirty minutes it is in the
context of the other matters which he refers to including above all the
pressure which was apparently exerted on the Respondent because of the doctor
‘s other engagements. The Judge is therefore talking of thirty minutes
having regard to all the surrounding circumstances in that particular case. I
could not possibly say that such a view is not open for him to take and still
less could I say that such a view was in any way perverse having regard to
these surrounding factors and therefore, in my opinion, there is no question of
law to be determined by this Court.”
10. I
must reluctantly disagree with the learned Judge of the High Court.
-4-
Where
section 13 is applicable it empowers a member of the Garda Siochana primarily
to require the person concerned to permit a designated doctor to take from that
person a specimen of his blood. The provision of a specimen of urine is a
secondary or alternative requirement which may be substituted at the option of
the person concerned. (See
DPP
(Coughlan) v. Swan
[1994]
I ILRM 314) Whilst it may be expected that the designated doctor would act with
appropriate consideration and courtesy for the person from whom a specimen of
blood was to be taken, there is no provision in the section requiring or
authorising any delay or postponement in the taking of the specimen beyond what
might reasonably be required to enable the person to exercise his statutory
choice between giving a specimen of blood or a specimen of urine. Indeed the
taking of a sample of either class is always in the context that the operation
must be completed within three hours from the time at which the person
concerned was driving the motor car. To that extent at least the passage of
time is a factor to be borne in mind. If there is no moratorium on the taking
of a blood specimen then there can be no statutory requirement for the
allowance of time for the provision of a urine specimen. To escape the
obligation of permitting a blood specimen to be taken the person concerned must
actually provide a specimen of urine: not simply agree to provide such a
specimen within a limited or reasonable time. Of course it can be appreciated
that the person from whom a specimen is required may not be able to provide the
urine sample immediately.
11. It
is not then a question of how long a doctor and the gardai must wait. The legal
consequence. as explained in
DPP
v. Swan
(above)
,
is that, where a person opts to provide a urine sample and is unable to do so
the obligation to permit the taking of a blood specimen revives. The election
to provide a urine sample is not exercised by agreeing to provide such a sample
but by the provision of it. So far from an entitlement to thirty minutes or
fifteen
-5-
minutes
or any other period which might appear reasonable, it is my view that the
requirement to provide a urine sample is coterminous with the obligation to
permit the extraction of a blood specimen as a matter of law. No doubt as a
matter of practice and common courtesy the doctor and gardai involved would
afford the person concerned a reasonable interval to provide the agreed sample.
However, in the nature of the statutory rights and obligations I am satisfied
that the learned Judge of the District Court was wrong in concluding the
Respondent was entitled to an interval which he assessed in the circumstances
of the present case at thirty minutes or indeed to any such interval.
Accordingly, I would allow the appeal and answer the question raised in the
case stated in the negative.
-6-
© 1999 Irish Supreme Court
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