DPP -v- McDonagh [2008] IESC 57 (16 October 2008)

DPP -v- McDonagh [2008] IESC 57 (16 October 2008)

Section 13(1)(a) of the Road Traffic Act, 1994, authorises a Garda to require only two specimens of breath, and does not permit a requirement for a third specimen. The statutory scheme does not require that both specimens be provided in a single operating cycle of the apparatus. The admissibility of a section 17 Certificate depends on compliance with the statutory requirement, not the technical limitations of the machine. Where two measurable specimens are provided, even in separate cycles, the requirement is satisfied, and a certificate based only on two specimens from a single cycle is not admissible if it ignores a lower reading from a previous cycle.

Citation
[2008] IESC 57
Parties
Prosecutor: Director of Public Prosecutions; Accused: Frank McDonagh
Jurisdiction
Ireland
Judgment Date
16 October 2008
Procedural Posture
Criminal Appeal (case Stated) / Supreme Court Determination on Consultative Case Stated
Outcome
Questions answered in the negative; section 17 Certificate inadmissible in these circumstances.
Legal Topics
Breath Specimen Requirements, Admissibility of Evidence, Statutory Interpretation, Due Process, Self Incrimination, Penal Statutes
Criminal Law Road Traffic Law Constitutional Law Breath Specimen Requirements Admissibility of Evidence Statutory Interpretation Due Process Self Incrimination +1 more

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Parties

Director of Public Prosecutions

Prosecutor

Frank McDonagh

Accused

Procedural Posture

Criminal Appeal (case Stated) / Supreme Court Determination on Consultative Case Stated

Legal Issues

  1. 1 Whether a Garda may require more than two breath specimens under s.13(1)(a) of the Road Traffic Act, 1994, when an incomplete specimen has already been provided
  2. 2 Whether a section 17 Certificate is admissible in evidence when two specimens are not provided in a single operating cycle of the intoxilyzer

Ratio Decidendi

Section 13(1)(a) of the Road Traffic Act, 1994, authorises a Garda to require only two specimens of breath, and does not permit a requirement for a third specimen. The statutory scheme does not require that both specimens be provided in a single operating cycle of the apparatus. The admissibility of a section 17 Certificate depends on compliance with the statutory requirement, not the technical limitations of the machine. Where two measurable specimens are provided, even in separate cycles, the requirement is satisfied, and a certificate based only on two specimens from a single cycle is not admissible if it ignores a lower reading from a previous cycle.

Court Disposition

Questions answered in the negative; section 17 Certificate inadmissible in these circumstances.

Orders

  • The Supreme Court answers both questions in the case stated in the negative.
  • Section 17 Certificate based on two specimens from a single cycle is inadmissible if a lower specimen was provided in a previous incomplete cycle.