The High Court yesterday ruled that a District Court judge had been correct in dismissing a drink driving prosecution. The judge had found it was reasonable for the woman to say she could not give a urine sample in a cubicle at a garda station with a male garda and doctor in the same room.
Counsel for Ms Jenny Lennon, of Park View, Ratoath, Co Meath, who was charged with driving under the influence of alcohol, had submitted in Dunshaughlin District Court that his client had an option to give either a blood or urine sample but that the choice must be real and effective.
In the circumstances there was no such choice, it was argued.
His client had initially opted to give a urine sample. Instead she felt compelled to give a blood sample and did so. It was argued the requirements of the legislation were not met.
Judge John Brophy, who inspected the cubicle, held it was reasonable for Ms Lennon to say she could not furnish a urine sample in such circumstances and dismissed the prosecution. He held she was unlawfully deprived of her choice to furnish a sample of blood or urine.
The President of the High Court, Mr Justice Morris, yesterday said that on the facts as found by the judge it was clear Ms Lennon could not provide a urine sample and in the circumstances it must follow that she was deprived of the opportunity to exercise her option.
Evidence from Ms Lennon's blood sample was improperly obtained and in violation of her statutory rights, the judge added.
Judge Brophy had referred his decision on the case to the High Court for its opinion.
Ms Lennon had been charged with driving with alcohol in her body such that within three hours of driving the concentration exceeded 80 mg per 100 ml of blood. Mr Justice Morris said the facts as proved were that the prosecuting garda stopped the woman on December 15th, 1996, and spoke to her. He thought she had consumed intoxicating liquor and asked her to give a breath test, which was positive.
Having decided that she was incapable of having proper control of a vehicle, he arrested her and brought her to Ashbourne Garda station. A doctor was called and the garda told the woman he required her to give a sample of blood or, if she so wished, her urine.
The woman opted to give a urine sample but declined when she was informed by the garda she would have to give it in a cubicle in a room where the garda and the doctor intended to remain. The cubicle was not fully enclosed.
No woman garda was present and in the circumstances Ms Lennon did not think she could provide a urine sample as intended and felt she was compelled to provide a blood sample.
The garda had said the toilet was in a cubicle in the left rear portion of the room. There was a door in the front of the cubicle with a division on the bottom and also on the top. There was also a division between the top of the cubicle and the ceiling.
The garda was asked whether he could see the woman's feet and he said he supposed he could if he got down on his hands and knees and looked under the door. None of the women gardai attached to Ashbourne Garda station was there at the time.