Court holds failure to provide breath specimen in indicated manner is an offence under Road Traffic Act 1974.

THE SUPREME COURT

Murray C.J.

McCracken J.

Kearns J.

213/04

In the matter of A CASE STATED

PURSUANT TO S. 16 OF THE COURTS OF JUSTICE ACT, 1947

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

COMPLAINANT

AND

BRIDGET MOOREHOUSE

DEFENDANT

JUDGMENT delivered the 28th day of July 2005, by Murray C.J.

1. This is a case stated by a Judge of the Circuit Court pursuant to s. 16 of the Courts of Justice Act, 1947 in which two questions

are asked of this Court concerning the interpretation of s. 13(1)(a) and 13(2) of the Road Traffic Act, 1974. The complainant had

been erected pursuant to s. 49 of the Road Traffic Act, 1961 and, having been brought to a Garda Station and required to provide

two specimens of her breath pursuant to s. 13(1)(a) was subsequently charged and convicted in the District Court for an offence

pursuant to s. 23 of the Act of 1994 for failing to comply with the requirement under the aforesaid subsection. She appealed this

conviction to the Circuit Court which has given rise to this case stated.

The Case Stated

2. The charge before the Circuit Court is that the defendant did:-

“on the 28th of December, 2001, at Dun Laoghaire Garda Station in said district being a person arrested under s. 49(8) of the

Road Traffic Act, 1961, having been required by Francis Byrne, a member of the Garda Síochána at Dun Laoghaire Garda

Station pursuant to s. 13(1)(a) of the Road Traffic Act, 1994, to provide two specimens of your breath, did fail to comply

forthwith with the said requirement in the manner indicated by the said member of the Garda Síochána, contrary to s. 13(2)

of the Road Traffic Act, 1994.”

3. According to the case stated it was established in evidence that the defendant had been arrested for an offence pursuant to s. 49

of the Road Traffic Act, 1961 at 12:25 a.m. on 28th December, 2001 by Garda Brendan McGrath after he and his colleague in the

garda patrol car, Garda Lacey, had observed a motor car being driven erratically by the defendant. The defendant was brought to

Dun Laoghaire Garda Station where the usual procedures were followed, and about which there is no controversy. The defendant was

taken to a waiting room by Garda McGrath and another member, Garda Byrne. After a period the defendant or accused was taken to

the intoximeter room by Garda McGrath and Garda Byrne.

4. According to the case stated the facts established in evidence were as follows:

“Garda Francis Byrne stated that he was a member of An Garda Síochána stationed at Dun Laoghaire Garda Station. On the

28th December, 2001 at 10:00 p.m., he took up duty and at 12:40 a.m. on the 28th December, 2001, Garda Brendan McGrath

brought the defendant, Bridget Moorehouse, to Dun Laoghaire Garda Station having arrested her as previously described. At

12:48 a.m., the defendant was taken to the interview room by Garda Brendan McGrath and Garda Byrne. At 12:50 a.m., Garda

Byrne stated that he formed the opinion that Bridget Moorehouse had consumed intoxicating liquor.

At 1:12 a.m. he took Bridget Moorehouse to the doctors’ room with Garda McGrath. He introduced Bridget Moorehouse to the

intoximeter, EC/IR. He noted in his notebook the temperature and humidity of the room. Having observed Bridget Moorehouse

for 20 minutes, he was satisfied that she had nil by mouth. He then made a requirement under s. 13(1)(a) of the Road Traffic

Act, 1994 as follows:-

“I am of the opinion that you have consumed an intoxicant. Therefore pursuant to s. 13(1)(a) of the Road Traffic Act,

1994, I am now requiring you to provide two specimens of your breath by exhaling into this apparatus designed for

determining the concentration of alcohol in your breath. Failure or refusal to comply with my requirement in the manner

outlined by me is a specific offence under s. 13(2) of the Road Traffic Act, 1994. Penalty on summary conviction shall

render you liable to a fine not exceeding £1000, or to imprisonment to a term not exceeding 6 months or to both.”

He then asked Bridget Moorehouse if she understood the requirement which he explained in ordinary language, and she said

that she did. He then began the breath test by entering Bridget Moorehouse’s details into the intoximeter, EC/IR. He opened a

sealed bag in front of Bridget Moorehouse which contained a new mouthpiece, and he placed it on the breath tube. Prior to

Bridget Moorehouse giving her first breath sample, he explained to her to inhale deeply, to make a seal with her lips over the

mouthpiece, and to blow at a steady pace down the breath tube. Bridget Moorehouse was unable to provide a complete

breath specimen on this occasion. She was unable to seal her lips around the mouthpiece, and the breath she exhaled was not

going into the breath tube.

He stated that he asked Bridget Moorehouse did she understand the instructions he gave to her and she said she did. The

intoximeter, EC/IR, then printed two statements on which it stated, specimen 1 was incomplete, indicating that Bridget

Moorehouse had failed to provide a complete breath specimen.

The same instruction was also given to her prior to her giving a breath specimen on the second test. Bridget Moorehouse was

again unable to provide a breath specimen on this occasion. She was again unable to seal her lips around the mouthpiece, thus

when she exhaled air, it was not going into the breath tube. She did not exhale sufficient air in order to provide a complete

breath specimen.

The intoximeter EC/IR then printed out two identical statements stating on them that specimen 1 was incomplete. She was

given a third opportunity to provide a breath specimen.

A third test was started by entering her details into the intoximeter EC/IR. Garda Byrne explained to her to inhale deeply, to

make a seal with her lips over the mouthpiece and to blow at a steady pace down the breath tube. She was again unable to

seal her lips around the mouthpiece.

Garda Murphy explained to her the necessity of sealing her lips around the mouthpiece, and also of inhaling deeply. She again

failed to provide two complete breath specimens in the manner Garda Byrne outlined to her. The intoximeter EC/IR then

printed two identical statements on which it was stated that specimen 1 was incomplete.

At 2:20 a.m., she was released from custody having been charged by Sergeant James Murphy with having failed to provide

two complete breath specimens in the manner outlined to her by Garda Byrne.

On cross-examination, Garda Byrne agreed that the defendant did provide at least two specimens of her breath by exhaling

into the apparatus, but that these specimens were insufficient to allow the apparatus to determine the quantity of alcohol, if

any, in the specimen.

Garda Murphy also stated that the formula used by him in making the requirement of the defendant to provide two samples of

her breath was in accordance with the instructions given to him by his Authorities as part of the instructions for the operation

of the intoximeter EC/IR.”

5. In the context of the foregoing evidence the Circuit Court Judge in the case stated stated 11th May, 2004 posed the following two

questions of law:-

(1) Where following an arrest under s. 49 of the Road Traffic Act, 1961, the arrested person is required to provide two

specimens of his breath pursuant to s. 13(1)(a) of the Road Traffic Act, 1994, and where the member of An Garda Síochána

indicates the manner in which the arrested person is to comply with the requirement, does s. 13 (2) of the Road Traffic Act,

1947, make it an offence to refuse or fail to comply with the requirement in the manner outlined by the member of An Garda

Síochána making the requirement? If the answer to this question is “no”, then

(2) Where following an arrest under s. 49 of the Road Traffic Act, 1961, the arrested person is required to provide two

specimens of his breath pursuant to s. 13(1)(a) of the Road Traffic Act, 1994, and does so by exhaling into the apparatus

designed for determining the concentration of alcohol in his breath, is that sufficient compliance with the “requirement” under

the section so as to provide the arrested person with a defence to a charge of refusing or failing to comply forthwith with the

requirement under s. 13(1)(a) of the Road Traffic Act, 1994?

Section 13(1), (2) and (3) of the Act of 1994

6. Section 13 of the Act of 1994 provides as follows:

“(1) Where a person is arrested under section 49(8) or 50(10) of the Principal Act or s. 12(3), or where a person is arrested

under s. 53(6), 106(3A) or 112(6) of the Principal Act and a member of the Garda Síochána is of opinion that the person has

consumed an intoxicant, a member of the Garda Síochána may, at a Garda Síochána station, at his discretion, do either or

both of the following -

(a) require the person to provide, by exhaling into an apparatus for determining the concentration of alcohol in the

breath, 2 specimens of his breath and may indicate the manner in which he is to comply with the requirement,

(b) require the person either -

(i) to permit a designated doctor to take from the person a specimen of his blood, or

(ii) at the option of the person, to provide for the designated doctor a specimen of his urine, and if the doctor states in

writing that he is unwilling, on medical grounds, to take from the person or be provided by him with the specimen to

which the requirement in either of the foregoing subparagraphs related, the member may make a requirement of the

person under this paragraph in relation to the specimen other than that to which the first requirement related.

(2) Subject to s. 23, a person who refuses or fails to comply forthwith with a requirement under subsection (1)(a) shall be

guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term

not exceeding 6 months or to both.

(3) Subject to s. 23, a person who, following a requirement under subsection (1)(b) -

(a) refuses or fails to comply with the requirement, or

(b) refuses or fails to comply with a requirement of a designated doctor in relation to the taking under that subsection

of a specimen of blood or the provision under that subsection of a specimen of urine, shall be guilty of an offence and

shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 6

months or to both.”

7. The remaining subsections (4) and (5) of s. 13 refer respectively to a presumption in relation to the apparatus used for the breath

test and the non-application of the Probation of Offenders Act, 1907 to an offence, which are not relevant in this context.

8. Section 23 referred to in subsection (2) provides for certain defences to a refusal to provide specimens of breath which are also

not relevant for present purposes.

9. Counsel for the defendant also referred to s. 12 of the Act of 1994, in its original and amended form, as well as s. 14 of the same

Act in support of his submissions and these are referred to below.

Decision

10. The only section which arises for interpretation is s. 13 of the Act of 1974. The charge before the Circuit Court arises under that

section alone and not any other section. The task of the Court is to ascertain the intent of the Oireachtas when it enacted that

section.

11. It is axiomatic that the starting point for the interpretation of any statutory provision is the text of the provision itself, which falls

to be interpreted according to its ordinary and natural meaning.

12. In Howard –v- Commissioners of Public Works [1994] 1 IR 101 Blayney J., in a statement, which has also been cited with approval

in subsequent judgments of this Court, stated:

“The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention

expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be

necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case

best declare the intention of the lawgiver. 'The tribunal that has to construe an Act of a legislature, or indeed any other

document, has to determine the intention as expressed by the words used. And in order to understand these words it is

natural to enquire what is the subject matter with respect to which they are used and the object in view.’”

13. At the risk of repetition the relevant text of s. 13(1) provides that

“Where … a member of the Garda Síochána is of opinion that the [arrested] person has consumed an intoxicant, a member of

the Garda Síochána may, at a Garda Síochána station, at his discretion, do either or both of the following -

(a) require the person to provide, by exhaling into an apparatus for determining the concentration of alcohol in the

breath, 2 specimens of his breath and may indicate the manner in which he is to comply with the requirement

[emphasis added]

…”

14. Subsection (2) then provides that

“… a person who refuses or fails to comply forthwith with a requirement under subsection (1)(a) shall be guilty of an offence

…”

15. I find it difficult to see that any person arrested on suspicion of drink driving could understand their obligation under the section

other than to exhale into the apparatus in a manner indicated by the Garda member. That is the requirement of s. 13(1)(a). It makes

it mandatory on the person concerned to provide the specimen in accordance with the manner indicated by the Garda member if he or

she “is to comply with the requirement”. Failure to do so is a failure to comply with the requirement.

16. I do not see any ambiguity in the section or indeed any need to imply any additional words to come to this conclusion.

17. There may be multiple ways of refusing or failing to comply with the requirement under subsection (1)(a). Subsection (2) makes it

an offence to refuse or fail to comply forthwith with the requirement made. That is to say any refusal or failure to do so.

18. That is the specific offence created by this section.

19. The purpose of the section is to make it an offence not to exhale into the apparatus so that a proper test of the breath can be

obtained. Did the Oireachtas intend that it would be an offence to give a blanket refusal to puff even mildly in the direction of the

apparatus but not an offence to puff or haw gently in its direction so that some exhaled air manages to enter the apparatus in

complete disregard of the manner in which the sample was to be given as required by the Garda member? Not only do I not think so

but the Oireachtas expressly stated that the requirement to provide a specimen of breath will not be complied with if the person does

not exhale as indicated by the Garda member.

20. That is the offence under s. 13(2) of refusing or failing to comply with the requirement under subsection (1)(a).

21. What happened in this case? The defendant was informed that she should inhale deeply, make a seal with her lips over the

mouthpiece and blow at a steady pace down the breath tube. She said she understood these instructions. They were simple

instructions. She did not seal her lips around the mouthpiece and “the breath she exhaled was not going into the breath tube. She did

not exhale sufficient air in order to provide a complete breath specimen”. It was in these circumstances that the Garda member

conceded that she did provide two specimens of her breath by exhaling into the apparatus but that these specimens, not surprisingly,

were insufficient to allow the apparatus to determine the quantity of alcohol, if any, in the specimen. All of this is in the case stated.

22. On the basis of these facts could that have constituted a refusal or failure to comply with the requirement under s. 13(1)(a)? I

think it is clearly capable of being so found. Whether there was in fact a refusal or failure is of course ultimately a matter of fact for

the trial judge.

23. That, to my mind at any rate, is the plain and ordinary meaning of the only section governing the offence with which the

defendant is charged.

24. The section makes no distinction between a refusal to provide a specimen of breath simpliciter or a refusal to do so in a manner

indicated by the Garda member. The Oireachtas could have done so but they did not. There was no need to do so, unless one form of

failure or refusal was to attract a heavier penalty than another. That obviously is not the case. As I have already stated the effect of

subsection (2) is to make any refusal or failure to comply with the requirement an offence. It is commonplace that offences can be

committed in different ways and a breach of the law will be an offence however the modus operandi is adopted to breach it.

25. I propose to go on to consider the section in the context of the Act as a whole and also other specific provisions of the Act to

which the defendant’s counsel have referred. Before doing so, there is one other submission made on behalf of the defendant which I

wish to address. It was submitted that in some sense the phrase in subsection (1) which provided that the Garda member may

indicate the manner in which the person is to comply with the requirement was in some sense only “enabling” or merely “enabling” so

that it should be considered separately and distinctly from the rest of the sentence in which that phrase is found. The suggestion

seems to be that it does not form part of the requirement which may be made of the arrested person under the subsection and

therefore ignoring the instructions of the Garda member while at the same time managing to get some little air into the apparatus

does not constitute a breach of that requirement.

26. How the phrase, which is not even a separate sentence, is characterised does not seem to me to have any great import. The

statutory power is given to Garda members and is given for the purpose of enabling them to exercise it. In any event, the fact

remains that the Oireachtas expressly gave the power to the Garda member to indicate the manner “in which he is to comply with

the requirement” [emphasis added]. The Oireachtas made it mandatory for the arrested person to comply with the Garda request if

they are to fulfil the requirement that is being made of him or her under the section. That seems to me to be the effect of the

phrase, however it is characterised. The canon of construction relied upon by the defendant, according to which the provisions of a

penal statute should be construed strictly, only arises where there is a real doubt as to the true intention of the legislature. Since I

have found the section to be unambiguous this canon of construction does not apply.

The Act as a whole and subsections (12) and (14)

27. Consideration of the ordinary and natural meaning of s. 13 in isolation may not be conclusive as to the interpretation to be given

to it.

28. In East Donegal Cooperative –v- Attorney General [1970] IR 317 at p. 314 Walsh J. stated, by reference to the Act of the

Oireachtas in issue in that case,

“The words of the Act, and in particular the general words, cannot be read in isolation and their content is to be derived from

their context. Therefore, words or phrases which at first sight might appear to be wide and general may be cut down in their

construction when examined against the objects of the Act which are to be derived from a study of the Act as a whole

including the long title. Until each part of the Act is examined in relation to the whole it would not be possible to say that any

particular part of the Act was either clear or unambiguous.”

29. This statement is particularly applicable to broad and general provisions of an Act where its interpretation may be less obvious

than in the case of technical or detailed provisions. In a sense Walsh J. could be said to be alluding to the purposive or teleological

methods of interpretation. However, I do not think that the interpretive question posed in this case is so complex as to warrant any

further elaboration on the ambit of those methods of interpretation.

30. Suffice it to say that consideration of a specific provision of an Act in the context of the Act’s objectives and other provisions

may suggest the existence of an ambiguity in that provision not otherwise readily apparent, or may confirm the meaning which the

provision at first appears to have or simply not disclose any element which would dislodge the ordinary natural meaning that the

provision in itself has.

31. I do not think that I need to give any lengthy consideration to the meaning of s. 13 in the context of the objects of the Act as a

whole. The long title of the Act of 1994 states it to be an Act to amend and extend the Road Traffic Acts, 1961 – 1987. Section 1 of

the Act of 1994 provides that it may be cited and construed as the Road Traffic Acts, 1961 – 1994.

32. It is quite obvious from an examination of the Road Traffic Acts that one of their objects is to control and regulate the use of

mechanically propelled vehicles in public places. It is equally obvious that among the objects of the Acts in question is the prohibition

on driving a motor car by a person who has an excess of alcohol in his or her blood. To that end provision is made for the arrest of

drivers suspected of driving with an excess of alcohol and for the carrying out of tests, including breath tests, for the purpose of

establishing the level of alcohol in the driver’s blood. It is probably trite to say but it is within the objects of the Act that persons who

are obliged to provide a specimen of their breath should be subject to prosecution should they fail or refuse to provide such samples

including should they try to evade providing a sample in a manner which enables the authorities to carry out an effective and reliable

test.

33. Therefore the interpretation which I have concluded should be given to s. 13(1)(a) and (2) is entirely consistent with the objects

of the Act.

34. Central to the arguments submitted on behalf of the defendant was the reliance placed on the terms of s. 12 and 14 when

compared to the terms of s. 13. It was submitted that since these sections created distinct offences of (a) a failure or refusal to

provide a sample under those sections and (b) a failure to provide a sample under those sections in a manner indicated that this

meant that these were separate offences, only one of which had been criminalised under s. 13. The submission was that s. 13, taken

in conjunction with subsections (12) and (14), must or should be interpreted as creating an offence of a refusal or failure to provide a

specimen of breath but did not make it an offence to refuse or fail to do so in the manner specified by a Garda member. Alternatively,

there was at least an ambiguity as to whether the latter offence had been criminalised by s. 13 and the defendant should be given

the benefit of that ambiguity since it is a canon of construction that penal statutes be interpreted strictly. Section 12 provides for

the administration of breath tests at the roadside when a Garda member is of the opinion that a person in charge of a motorcar has

consumed intoxicating liquor. Section 12(1) of the Act, insofar as is relevant, provides as follows:

“Whenever a member of the Garda Síochána is of opinion that a person in charge of a mechanically propelled vehicle in a public

place has consumed intoxicating liquor, he may require the person -

(a) to provide, by exhaling into an apparatus for indicating the presence of alcohol in the breath, a specimen of his

breath …and may indicate the manner in which he is to comply with the requirement …”

35. Section 12(2) of the Act provides:

“A person who refuses or fails to comply forthwith with a requirement under this section, or to comply forthwith with such a

requirement in a manner indicated by a member of the Garda Síochána, shall be guilty of an offence and shall be liable on

summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 6 months or to both.”

36. Counsel for the defendant also sought to contrast the provisions of s. 13 with those of s. 14 of the Act of 1994 which concerns

the powers of a Garda where a motorist is suspected of being under the influence of drugs while in charge of a motorcar.

37. Section 14(4) of the Act, which is relied upon by the defendant, provides as follows:

“Where a person is at a Garda Síochána station either pursuant to subsection (1) or having been arrested under subsection

(3), a member of the Garda Síochána may there require the person either -

(a) to permit a designated doctor to take from the person a specimen of his blood, or

(b) at the option of the person, to provide for the designated doctor a specimen of his urine,

and if the doctor states in writing that he is unwilling, on medical grounds, to take from the person or be provided by him with

the specimen to which the requirement in either of the foregoing paragraphs related, the member may make a requirement of

the person under this subsection in relation to the specimen other than that to which the first requirement related.”

38. Section 14(5) provides:

“Subject to section 23, a person who, following a requirement under subsection (4) -

(a) refuses or fails to comply with the requirement, or

(b) refuses or fails to comply with a requirement of a designated doctor in relation to the taking under that subsection

of a specimen of blood or the provision under that subsection of a specimen of urine,

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a

term not exceeding 6 months or to both.”

39. Dealing first of all with s. 12 it can be said that it is clear and unambiguous. Subsection (2) is framed so as to distinguish between

a refusal or failure to comply with a requirement under the section and a refusal or failure to comply with such a requirement in a

manner indicated by a member of the Gardaí.

40. On behalf of the defendant it was argued that that distinction between a refusal to comply with a requirement and to comply in a

manner indicated is clear and unambiguous in s. 12. No such distinction is made in s. 13(2) since it refers to a refusal or failure to

comply with a requirement simpliciter. Therefore, it was submitted, the Oireachtas must be taken as not having intended s. 13(2) to

apply to a refusal or failure to provide a specimen of breath in the manner indicated by the Garda member.

41. It seems to me that this is a false syllogism. Section 12 is unambiguous in its own terms and, as I have concluded, so is s. 13.

Both render a refusal or failure to comply with a requirement under the relevant section an offence whether the non-compliance arises

from a refusal or failure simpliciter or a refusal or failure to provide a specimen of breath in a manner required by the Garda member. It

certainly can be said that s. 12 deals with the matter in a form and terms different to that used in s. 13 but I see them as no more

than two ways of achieving the same statutory result. One can readily envisage other drafting formulae which could achieve the

same result such as to enable a Garda member to “require the person, in a manner directed by him, to provide by exhaling into an

apparatus for determining the concentration of alcohol in the breath, and making it an offence not to comply with the requirement

…”. There are undoubtedly other ways in which s. 13 (or s. 12) could have been drafted. One is entitled to expect consistency of

style on the part of the drafter of a Bill, particularly between sections of the same statute. The form adopted in s. 12 is certainly

more detailed and perhaps more pedantic. Section 12 could have been drafted in the same way as s. 13 and vice versa since both

achieve the same result. Only for the sake of consistency of expression would it have been better if the drafter had adopted the

same approach in each case. In that sense the drafting of the Act was poor in style and form.

42. However, a consideration of s. 12 does not in my view take away from the intent of the Oireachtas as clearly as expressed in s.

13. (1)(a) and (2).

43. Section 14 is in some material ways a rather different matter. There the distinction is made between the requirement of a Garda

member and that of a medical doctor. Insofar as s. 14 is relevant to the issue my comments regarding s. 12 would apply equally.

44. Section 13 is the only section which applies in this case.

45. Having concluded that s. 13(1)(a) and (2) are in themselves clear and unambiguous in their meaning and effect which meaning

and effect, is not in my view, dislodged by a consideration of the other provisions of the Act I would answer the first question posed

in the Case Stated in the affirmative. In those circumstances consideration of the second question does not arise.