A HIGH COURT judge has overturned the conviction of a woman for drink driving as there was no written authorisation for the setting up of the Garda checkpoint at which she was stopped for random breath testing.
In a decision which may affect similar cases, Mr Justice Iarfhlaith O'Neill said it was not sufficient for the garda who arrested the woman to give evidence to the District Court that he had oral authorisation to operate a random breath test checkpoint. Written approval for a checkpoint was "an essential feature" of the law, he said.
He was giving his reserved judgment on a point of law referred to the High Court for clarification by the District Court.
Judge John Brophy had asked was he entitled to convict the woman on foot of oral evidence of authorisation to set up the checkpoint. The judge had convicted the woman, fined her €500 and banned her from driving for a year.
Mr Justice O'Neill ruled that oral authorisation was not sufficient under the 2006 Road Traffic Act, which brought in random breath testing, as that Act stated a member of the Garda not below inspector rank shall provide authorisation for a checkpoint "in writing" and must also specify the date, place and hours within which it is to be operated.
The judge noted that the District Court had been told that the woman had a reading of 48 microgrammes (mg) of alcohol per 100 millilitres of breath - 13mg over the legal limit.
Mr Justice O'Neill said he was satisfied there were no exceptional circumstances in this case and written authorisation was a necessary proof for establishing a checkpoint.
Without proper authorisation, any subsequent evidence obtained by the arresting garda was in breach of the motorist's constitutional rights and her arrest was therefore unlawful, the judge said.
He rejected arguments by the Director of Public Prosecutions that valid authorisation had been established because of the failure of the woman's lawyers to cross-examine the arresting garda about the authorisation issue.
If that argument was accepted, it would have meant shifting the burden of proof from the prosecution to the woman, the judge said.
There was no onus on an accused in any criminal case to "fill gaps" in the prosecution case, he said.