A publican has secured a High Court order restraining the District Court from proceeding to hear a drink-driving charge against him.
The order applies pending the outcome of proceedings in which Mr John Purcell is challenging Garda use of a device, the Intoximeter, to measure alcohol concentration.
Mr Purcell, of Rathfarnham, Dublin, has challenged the constitutionality of Sections 17, 19 and 21 of the 1994 Road Traffic Act on the grounds that the legislation does not provide for independent analysis of the breath specimen procedure. He claims that the Intoximeter deprives him of the right to challenge the machine's findings.
Mr Gerard Hogan SC, for Mr Purcell, said the 1994 Act provided for a mechanism by which the Garda might require a person to give two specimens of breath into the Intoximeter. Under the legislation, the lower of the two readings was taken into account.
That lower reading was then subject to another deduction, which appeared to have no statutory basis. It was an arbitrary deduction.
Mr Hogan said that the critical point was the absence of any mechanism by which the person involved could have an independent test of the accuracy of the Intoximeter readings.
Mr Justice Murphy said that a person could perhaps ask for a blood or urine test as well. Mr Hogan said there was no way under the Act that the person could instigate or request such other tests if the Garda elected to take the breath sample.
Mr Hogan said that a person was required to give separate samples within three minutes of each other and there could be significant fluctuations between the two readings. It was far from a precise science because, unless you had your own Intoximeter, you could not verify the validity of the Garda instrument.
One reading on the Intoximeter could be 86 and the second might be 80.
That was followed by a deduction of a figure which was generally 17.5 per cent. Whether it could be 20 per cent or 30 per cent was not certain, because the basis for this practice was obscure.
Counsel said his client believed that the entire legislation providing for the Intoximeter was unconstitutional.
The case in which Mr Purcell was charged under Section 49 of the Road Traffic Act 1961 was due back in the District Court on June 25th next. That was why he was seeking a High Court order restraining the District Court from hearing the case.