A supreme Court decision yesterday exposed a legal loophole that could mean hundreds of drink-driving prosecutions are invalid.
The five-judge court found that Garda guidelines stating that a person arrested on suspicion of drink-driving should be observed for 20 minutes before a breath sample is given have no basis in law.
The Garda guidelines also provide that a garda, at a garda station, may require a person to provide two specimens of their breath by exhaling into the intoxiliser to determine the concentration of alcohol in their breath.
In its judgment yesterday, in the case of a senior IDA executive who was convicted of failing to provide two breath samples to gardaí, the Supreme Court ruled, that as the specified 20-minute period of detention prior to Mr Michael Finn being asked to give samples was not justified in law, evidence obtained after that time was not admissible.
Mr Justice Murray said if the procedure, where an arrested person must be observed for 20 minutes, was capable of being justified, it must be justified by a competent witness who could give appropriate evidence.
A Circuit Court judge had sought the assistance of the Supreme Court in determining the appeal by Mr Finn who was convicted of having failed to provide two breath samples to gardaí at Dún Laoghaire on June 10th, 2000. The judge had heard that Mr Finn, of Somerby Road, Greystones, Co Wicklow, had been disqualified from driving for two years, fined £250 and had his licence endorsed in the District Court.
Counsel for Mr Finn told the Circuit Court he had been arrested by gardaí at Stillorgan carriageway on suspicion of having driven while under the influence of drink. He was taken to Dún Laoghaire Garda station where a garda, in accordance with garda guidelines for operating the intoxiliser, observed Mr Finn for 20 minutes to record he had not eaten any food during that period, prior to a request for two intoxiliser breath samples.
Mr Finn's counsel submitted that since the Road Traffic Act did not give any statutory authority to gardaí to detain Mr Finn for any period of time prior to requesting breath samples, he had been held unlawfully from the time he had arrived at the station until the time he had declined to provide breath samples.
Yesterday, the Supreme Court ruled in favour of Mr Finn and decided he was not in lawful detention during the 27-minute wait to give the specimens. Given that finding, evidence subsequently obtained was inadmissible.
Mr Finn's case will now go back to the Circuit Court for the initial decision of the District Court to be quashed.
Mr Justice Murray said that, in criminal proceedings, the onus was on the prosecution to establish beyond reasonable doubt that a defendant, when held in custody, was at all times held in accordance with law. Not every delay was unreasonable and if it was not unreasonable, it did not require to be objectively justified.