High Court allows case stating Garda detention and arrest for driving under influence were lawful.

Neutral Citation: [2014] IEHC 394

THE HIGH COURT

[2013 No. 2140 SS]

IN THE MATTER OF SECTION 52(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACTS 1961

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA NIALL McDONNELL)

Prosecutor

-AND-

GARRET BYRNE

Accused

JUDGMENT delivered by Mr Justice Hedigan on the 31st of July 2014

1. This is a case stated by Judge Anne Watkin, a Judge of the District Court, pursuant to s.2 of the Summary Jurisdiction Act 1857,

as extended by s.51 of the Courts (Supplemental Provisions) Act, 1961, and the Rules of the District Court. The learned judge states

as follows:

(1) At a sitting of the Dublin Metropolitan District Court in the Criminal Courts of Justice on the 24th day of April 2013,

Garret Byrne (hereinafter "the accused") appeared before me to answer the charge preferred against him on national

charge sheet number 13285112, which alleged that the accused:

" On the 15/11/2012, at Raheny Garda Station in the said District Court Area of Dublin Metropolitan

District, being a person arrested under Section 4 (8) of the Road Traffic Act 2010 and having been

required by Garda Niall McDonnell a member of the Garda Síochána pursuant to Section 12 (1)(b) of

the Road Traffic Act 2010, as amended by Section 9(d) of the Road Traffic (No.2) Act 2011, to permit

a designated doctor to take from you a specimen of your blood, or at your option to provide for the

said doctor a specimen of urine, and having been so required by a said doctor to provide a specimen

of your blood did refuse to comply with the said requirement of the said doctor in relation to the taking

under the said sub-section of a specimen of blood.

Contrary to Section 12(1)(b, (3)(b) and (4) of the Road Traffic Act, 2010, as amended by Section 9(d)

of the Road Traffic (No. 2) Act, 2011

Mr. Padraig Mawe, Solicitor, of the Office of the Chief Prosecution Solicitor, appeared on behalf of the

Prosecution. Michael Finucane of Michael Finucane Solicitors, Kreston House, Arran Court, Arran Quay,

Dublin 7, represented the Accused.

Summary of evidence admitted before me:

(2) On 24th of April 2013 at Court 8 in the Criminal Courts of Justice I heard oral evidence from Garda Niall McDonnell of

Clontarf Garda Station and Dr. Y.M. Fakih, a registered medical practitioner.

(3) Garda McDonnell gave evidence that on 15th November 2012 he was on active patrol in an unmarked patrol car. He

stated that he was with Garda Derek Johnson and that he was requested to provide assistance in relation to a vehicle on

the Causeway, Dublin 5. While assisting in respect of that vehicle, a grey BMW came from the beach at the roundabout

direction. Garda McDonnell stated that as the vehicle passed by, he noticed the interior light was on. There were two

occupants in the car and the driver he now knows to be the accused.

Garda McDonnell stated that he was suspicious of the vehicle and turned the patrol car around in order to follow

the BMW towards the James Larkin Road. He indicated that he did not activate lights and sirens at first as it was

not his immediate intention to stop the vehicle. He noted that as the BMW approached the junction, the lights were

red. The BMW slowed in speed and was taking up two lanes of traffic as it entered into the right lane of the road.

The vehicle came to a sharp stop approximately 25 to 30 yards from the stop line at the junction, which is a public

place. He stated that he was concerned about the driving of this vehicle and as it came to a stop, he put on the

blue lights of the patrol car. He stated that the time at this point was approximately 21.55 hours.

Garda McDonnell stated that, as he approached the vehicle and announced himself as a member of An Garda

Síochána, he immediately got a smell of what he believed to be cannabis. He said the smell was extremely strong

and it was coming from the rear of the vehicle. He stated that he approached the driver's door and the driver

lowered his window. The driver (the accused) gave his name and date of birth. Garda McDonnell noted these in his

notebook and as he was doing so, he could smell cannabis emanating from the vehicle. He described the accused as

"very chatty" and said that he appeared to be disoriented.

Garda McDonnell stated that he told the accused that he was going to search him under the provisions of Section

23 of the Misuse of Drugs Act (as amended.) He asked the accused to get out of the vehicle to facilitate this

search, which was negative. He stated that the accused continued to talk continuously, could not stand still and

found it hard to stand in one spot. At other times, he appeared to be confused.

Garda McDonnell stated in evidence that he formed an opinion at this point that the accused was under the

influence of an intoxicant, namely, a controlled drug. However, he stated that he did not arrest the accused at this

point but instead asked him if he had taken drugs on the evening in question. In response, the accused replied that

he was on "legal medication" for certain medical conditions. Garda McDonnell stated that he asked the accused if

he was permitted to drive while taking these medications to which the accused replied 'yes'. At this point, other

Gardaí arrived at the scene to assist Garda McDonnell.

Garda McDonnell stated in evidence that he informed the passenger of the vehicle that he intended to search him

for drugs also, under the provisions of Section 23 of the Misuse of Drugs Act (as amended.) The result of the

search of the passenger was also negative. At this point, Garda McDonnell informed the accused that he (Garda

McDonnell) intended to search the car under the provisions of Section 23 of the Misuse of Drugs Act, as he believed

that drugs were in the car. The result of this search was negative. Garda McDonnell then stated, on the basis that

there was still a very strong smell of cannabis coming from the car, he requested a dog unit to attend and search

the vehicle also. He said he believed a dog unit was close by and that the dog handler was a Garda Kathleen

Bartley. A period of time then elapsed prior to the arrival of the dog unit. Garda McDonnell stated that the dog unit

informed him the search of the vehicle was negative.

When the search was completed, Garda McDonnell stated that he informed the accused he had formed the opinion

that he (the accused) was under the influence of an intoxicant. He said that the approximate time was 22.10 hours.

Garda McDonnell informed the accused that he was arresting him under Section 4(8) of the Road Traffic Act 2010

for an alleged offence under Section 4 of the same Act. Garda McDonnell stated that he explained to the accused in

ordinary language the reason for the arrest and that he cautioned him in the usual manner.

The accused was brought to Raheny Garda Station where he arrived at 22.15 hours. The personal details of the

accused were entered into the custody record by a Garda McCoy. In the interim, a doctor had been called to

attend the Garda Station to make a requirement under Section 12(1)(b) of the Road Traffic Act 2010 for the

purpose of taking a specimen of blood or urine. Garda McDonnell indicated that, upon the arrival of Dr. Fakih, a

lawful requirement was made of the accused by Garda McDonnell to permit the doctor to take from him a sample of

blood or urine. Garda McDonnell indicated that the accused offered to provide a urine sample and stated that he

was "dying to go to the toilet". At this point, the doctor opened a jug and marked the amount required.

At 22.46 hours, Garda McDonnell walked the short distance to the toilet where the accused made what was

described as a "little attempt" to pass urine. Garda McDonnell stated that the behaviour of the accused was similar

to his behaviour at the initial stop. At 23.04 hours the accused was taken to the toilet again to attempt to get a

sample. Again, he made a "little attempt" to provide a sample.

Within a short time of entering the bathroom, the accused declared he could not provide a sample. Garda McDonnell

stated that he brought the accused back to the interview room, where he repeated the requirement in plain English

and told him of the consequences of failing to provide a sample. The accused informed the Garda that he could not

provide urine.

The accused was then requested to provide a sample of blood. He refused immediately. The accused was reminded

of the consequences of failure or refusal but he informed Garda McDonnell that he could not provide urine and that

he was afraid of needles. He stated further that "no one was coming near him" with needles. At this point, Garda

McDonnell informed the accused that he had committed an offence under Section 12 of the Road Traffic Act and

that he was to be charged with this offence. The accused was therein placed in a cell at 23.12 hours and later

charged in the presence of Garda McDonnell by Sergeant Beere.

(5) Under cross-examination by the solicitor for the accused, Garda McDonnell confirmed that the accused was not under

arrest during the search of his person at the roadside nor immediately after it had been concluded. Garda McDonnell

stated, however, that although not under arrest, the accused was not free to leave and would have been prevented by

Gardaí if he had tried to do so.

(6) On further cross-examination Garda McDonnell could not furnish evidence to the Court as to how long it took for the

dog handler (Garda Bartley) to arrive. It was put to Garda McDonnell that Garda Bartley (who did not give evidence) had

made a statement indicating she was "working late patrolling the city centre" when she got a call for assistance. Garda

McDonnell agreed that the location of the search was some distance from the city centre and that the accused was not

ultimately arrested until after the dog handler had arrived and the dog completed the search of the accused's car. When

asked how long the entire search took, the Garda estimated that it took about 15 minutes.

Garda McDonnell confirmed that, following the search of the accused himself, he was required to wait at the scene

pending the search of the passenger and the vehicle, albeit that this was not articulated specifically to the

accused. Garda McDonnell stated that, following completion of the searches of the passenger and the vehicle, he

informed the accused that he intended to arrest him under the provisions of Section 4(8) of the Road Traffic Act.

(7) The Prosecution's second witness was Dr. Fakih who gave evidence about his dealings with the accused and Garda

McDonnell on the night. Dr. Fakih indicated that at 22.45 hours on the 15th of November 2012 he was introduced as a

designated doctor by Garda McDonnell to the accused. He indicated that Garda McDonnell made a requirement of the

accused to permit him under Section 12(1)(b) of the Road Traffic Act 201 0 to take from the accused a specimen of blood

or at the option of the accused a specimen of urine. He stated that he was present when Garda McDonnell cautioned the

accused in respect of a failure or refusal to comply with the requirement and outlined the penalties in respect of both. Dr.

Fakih stated that the accused opted to provide a specimen of urine and then was furnished with a sealed jug provided by

the Medical Bureau of Road Safety. Dr. Fakih stated that at 22.46 the accused made a very brief (less than one minute)

attempt at providing a urine specimen without any success. He stated that the accused informed him that he had

recently had abdominal surgery and showed him a midline scar resulting from the surgery. On entering the examination

room the accused had stated he was "dying to go to the toilet".

At 23.04 hours the accused made a second, very brief attempt to provide urine without any success. At 23.05

hours Garda McDonnell repeated the requirement of Mr. Byrne to provide a specimen of blood. At this point the

accused refused to do so. Dr. Fakih noted that the accused appeared drowsy and disorientated. He noted that his

eyes were blurry and his pupils were constricted. He noted that his gait was unsteady and his speech was also

incoherent. Dr. Fakih noted that he could not detect any alcohol on the breath of the accused and his eyes did not

appear blood shot. In view of the observations Dr. Fakih indicated that he formed the opinion that the accused was

under the influence of an intoxicant to such an extent as to render him incapable of having proper control of a

mechanically propelled vehicle in a public place.

(8) No cross examination of Dr. Fakih took place. Mr. Finucane reserved his position pending a ruling being given on the

lawfulness of the arrest and subsequent detention.

At this point in the case, an application for a ruling on the issue of the arrest was made by Mr. Finucane on behalf

of the accused. He submitted that the detention of the accused at the roadside was unlawful and tainted the

legality of the subsequent arrest because no power existed that allowed the Garda to detain the accused while

carrying out the search of another person. He submitted also that no statutory power was invoked by the Garda to

detain the accused at the roadside nor was the accused informed of any detention. It was submitted on behalf of

the accused that, in view of the evidence given by Garda McDonnell, the accused was neither free to go nor under

arrest. He was in the unlawful limbo of a 'halfway house' between liberty and detention. This was, it was submitted,

entirely unlawful, as the essential elements of a valid arrest were absent and the subsequent arrest of the accused

under Section 4(8) of the Road Traffic Act was also unlawful.

On behalf of the Prosecution, Mr. Mawe submitted the Garda had carried out a valid search under the Misuse of

Drugs Acts and that the power had been correctly and lawfully invoked.. "Garda McDonnell in evidence, stated that

the search was conducted under Section 23 and that the accused co​ operated. Garda confirmed that the accused

never attempted to leave the scene but that if he did try to leave, he would have been required to remain at the

scene. Once the search was complete, it was submitted that the Garda had made a valid arrest under Section 4 of

the Road Traffic Act 2010.

After consideration of the oral arguments made by and on behalf of the parties I directed the preparation of written

legal submissions. I adjourned the matter to 24th May 2013 for the exchange of written legal submissions and

consideration of my decision.

I say that I invited further oral argument from the parties on the relevant day and consideration was given to the

provisions of Section 23 of the Misuse of Drugs Act. I say that, having considered the oral and written submissions

made by each of the parties, I concluded that the detention of the accused at the roadside prior to his arrest was

lawful under Section 23 (1). In relation to the vehicle I found the search of same and the continued detention of

the accused for this purpose was lawful under Section 23 (1B) (c). In relation to the search of the passenger and

continued detention of the accused at that time, I was less clear. However after submissions from both the defence

and prosecution I found that the search of the passenger and continued detention of the accused was part of and

parcel of the one investigation and incident and was lawful and therefore the ensuing arrest of the accused by

Garda McDonnell was also lawful. However, at the request of the defence, I agreed to state a case for the

consideration of the High Court.

In view of the issues arising in the case, the opinion of the High Court is sought in respect of the following

questions:

i. Was the detention at the roadside by Garda McDonnell of the accused lawful and permissible under the terms of

s.23 of the Misuse of Drugs Act?

ii. Was the subsequent arrest of the accused under Section 4 (8) of the Road Traffic Act 2010 a lawful arrest?

iii. If the answer to either (i) or (ii) is "no", am I required to exclude the evidence of the making of a requirement

under Section 12 (1) (b) of the Road Traffic Act 2010 and any evidence of a subsequent failure by the accused to

comply with the requirement?"

2. The submissions of the accused.

Counsel for the accused submitted that there were serious issues surrounding the arrest and detention of the accused in that after

the search of his person was concluded, the investigating Garda went on to search the passenger of the car and the car itself,

however, in all this time, nothing was communicated to the accused either formally or informally, regarding his status. Garda

McDonnell accepted under cross-examination that he had formed an opinion regarding the accused at this time, albeit a private

thought, and stated that, accordingly, the accused was not free to leave the scene and he would have prevented the accused from

leaving the scene had he attempted to do so. Garda McDonnell further accepted that while the accused was detained by the roadside

and under 'de facto' arrest, he never actually conveyed this fact to the accused, or invoked any statutory power, and therefore,

counsel for the accused contended, his subsequent arrest under s.4 (8) of the Road Traffic Act, 2010, was unlawful. Furthermore, it

was argued, while Garda McDonnell was waiting for the back-up Gardaí to arrive, the accused remained at the roadside still in this

limbo half-way house regarding his status.

2.1 Counsel for the accused further contended that Garda McDonnell should have informed the accused of his impending arrest at the

point when he had 'formed an opinion' regarding the accused. Once the search of the accused had completed, one of the following

three things should have occurred. one, the accused should have been free to leave, thus having his liberty restored, Two, a further

statutory detention power should have been invoked, which should have been communicated to the accused, or three, the accused

should have been arrested for an offence, informed of the reason for same and his liberty thus removed at that moment. Counsel for

the accused submitted that there was no practical impediment on the Garda's part to informing the accused of his arrest and

detention, instead of detaining him at the roadside in this limbo, half-way house scenario.

3. The submissions of the prosecutor.

Counsel for the prosecution contended that this one statement by Garda McDonnell in cross-examination has been taken and given

more significance than it actually deserves. He submitted that the accused was informed at every stage of the process exactly what

was happening. Counsel for the prosecution doubted that the accused could have been in any doubt as to what was going on.

3.1 Counsel for the prosecution accepted that while an argument could be made that, once the accused had stated that he was

taking legal medication and was permitted to drive whilst on such medication, the accused should have been arrested then. But this

does not take into account the fluidity of the investigation. Counsel for the prosecution submitted that the Gardaí are fully entitled to

investigate the possible commitment of an offence and argued that although a half-way house situation did probably occur here, it

was created by legislation. The legislation doesn't provide for the detention of an accused when their vehicle is being searched, but

an accused can be required to stay with the vehicle. Practical reality has to be given to the fluidity of the situation and if one looks

at the language in s.23 (1)(a) of the Act, the language is large enough to include the vehicle. On this point, counsel for the

prosecution argued that if a member of An Garda Síochána thinks a person is in possession of a drug, even if it's in his vehicle, the

Garda can search that person and detain them while a search of their vehicle is being carried out. Counsel for the prosecution stated

that this was the approach Judge Watkin took in the District Court. A search of a driver, car and passenger, as in this case, is all part

and parcel of the one search and, therefore, if there was a detention, it was a legal detention.

4. Decision.

The nub of this consultative case stated seems to me to be a question as to whether a driver, subsequent to a search of his person

and car, was unlawfully detained by the roadside while the passenger of his car was also being searched and while a garda dog

handler came to the scene to search the vehicle. Section 23 of the Misuse of Drugs Act, 1977, as amended by s.12 of the Misuse of

Drugs Act, 1984, sets out explicit powers for a member of An Garda Síochána whilst carrying out a drugs search.

4.1 Section 23 (1) states as follows:

A member of the Garda Síochána who with reasonable cause suspects that a person is in possession in contravention of

this Act of a controlled drug, may without warrant-

(a) search the person and, if he considers it necessary for that purpose, detain the person for such time as is reasonably

necessary for making the search,

(b) search any vehicle, vessel or aircraft in which he suspects that such drug may be found (and any substance, article

or other thing on or in the vehicle, vessel or aircraft), and for the purpose of carrying out the search may, if he thinks fit,

require the person who for the time being is in control of such vehicle, vessel or aircraft to bring it to a stop and when

stopped to refrain from moving it, or in case such vehicle, vessel or aircraft is already stationary, to refrain from moving

it, or

(c) examine (by opening or otherwise) and seize and detain anything found in the course of a search under this section

which with such cause appears to him to be something which might be required as evidence in proceedings for an offence

under this Act.

(1A) Where a member of the Garda Síochána decides to search a person under this section, he may require the person to

accompany him to a Garda Station for the purpose of being so searched at that station.

(1B) Where a member of the Garda Sfochana decides to search a vehicle, vessel or aircraft under this section he may as

regards the person who appears to him to be the owner or in control or charge for the time being of the vehicle, vessel or

aircraft make any one or more or all of the following requirements:

(a) require such person, pending the commencement of the search, not to remove from the vehicle, vessel or

aircraft, as may be appropriate, any substance, article or other thing,

(b) in case the decision relates to a vehicle and the place at which he finds the vehicle is in his reasonable opinion

unsuitable for such search, require such person forthwith to take the vehicle or cause it to be taken to a place

which he considers suitable for such search and which is specified by him,

(c) require the person to be in or on or to accompany the vehicle, vessel or aircraft, as may be appropriate, for so

long as the requirement under this paragraph remains in force.

(1C) Where there is a failure to comply with a requirement made under this section the following provisions shall apply-

(a) in case the requirement was made under subsection (1A) of this section, the member of the Garda Síochána

concerned may arrest without warrant the person of whom the requirement was made, and

(b) in case the requirement is a requirement mentioned in paragraph (b) of subsection (1B) of this section, such

member may take the vehicle concerned, or cause it to be taken, to a place which he considers suitable for a

search under this section.

(1D) Where a requirement is made of a person under this section-

(a) in case the requirement is a requirement mentioned in paragraph (c) of subsection (1B) of this section, if at any

time while the requirement is in force the person of whom it was made is neither in nor on nor accompanying the

vehicle, vessel or aircraft, as may be appropriate, in relation to which the requirement was made, he shall be guilty

of an offence,

(b) in case of any other requirement under this section the person who fails to comply with the requirement shall be

guilty of an offence.

(1E) A requirement mentioned in paragraph (c) of subsection (1B) of this section shall remain in force until the search in

relation to which it is made is completed.

(1F) Where a requirement described in paragraph (a) of subsection (1B) of this section is made of a person, the search in

relation to which the requirement is made shall be carried out as soon as is practicable.",

and the said paragraphs (b) and (c), as so amended, are set out m paragraphs 1 and 2, respectively, of the Table to this

section.

4.2 Hence, a member of An Garda Síochána has an explicit power under s. 23(1) (a) to search a person he believes may be in

possession of a controlled substance, and may detain that person for a reasonable period of time for the purpose of carrying out that

search. According to s.23 (1) (b), a member of an Garda Síochána can search any vehicle in which he suspects that a drug may be

found and the person who is in control of such vehicle can be restrained from moving it. Although it did not arise in the circumstances

of this case because the Garda did not require the vehicle to be removed to another place, when a member of An Garda Síochána

decides to search a vehicle, under s. 23 (1B), he can make a number of requirements, such as requiring the person to accompany the

vehicle (s. 23 (1B) (c). Section. 23 (IE) makes it clear that if a member of An Garda Síochána makes a requirement under s. 23 (1B)

(c), this requirement remains in force until the search on the vehicle has been completed.

4.3 Evidently, s.23 significantly restricts a citizen's liberty. In this regard, in their book Misuse of Drugs: Criminal Offences and

Penalties, Martin McDonnell and Paul McDermott at para 17.10 state the following:-

"Due to the significant restrictions s 23 has upon the liberty of the citizen, it has been held that strict compliance with

the statutory provisions is required. A failure on the part of a Garda to comply with the requirements of s 23 will result

in an act occurring which exceeds the statutory power. In DPP v Boylan the defendant was the driver of a container

vehicle which was searched by An Garda Síochána. A quantity of cannabis was uncovered. A detention, purportedly

justified under s 23 for the purpose of the search of the vehicle, lasted in the region of two hours. Whilst a search,

which the court described as minimal, was conducted on the vehicle the defendant was removed to a shed some

distance away and questioned. At no time could the defendant have been said to have been under a requirement to be

on, in or in accompaniment of the vehicle. The High Court held that he could not be said to have been in lawful custody

during this period. The detention was not in exercise of the powers under s 23 and as such was unlawful. ''

4.4 It is apparent that circumstances in which an accused was detained by a member of An Garda Síochána for two hours and

removed to a shed some distance away from the site where his car was being searched, purportedly within the remit of powers

contained under s.23 of the Misuse of Drugs Act, 1977, as amended, is manifestly unlawful as the period of detention was clearly

unreasonable. Whilst "for such time as is reasonably necessary" is not defined in the Act, clearly a commonsense approach in line with

the practicality of the investigation is required. As was stated by Blayney J. in Howard v. Commissioners of Public Works, [1994] 1 IR

101 (and cited with approval in the Supreme Court in DPP v. Moorehouse [2006] 1 IR 421 and brought to my attention by counsel for

the accused):-

"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."

4.5 In that vein, the court in DPP v. Bullman [2009] IECCA 84, held that a roadside detention for the purposes of carrying out related

inquiries did not invalidate the subsequent arrest. The duration of the roadside detention during which enquiries were made of the

occupants of a jeep and phone calls were made to verify some of the queries, which took approximately ten minutes, until the arrest

that followed, was some fifteen minutes. The argument was made that the detention was unlawful thus invalidating the subsequent

arrest. The Special Criminal Court rejected this argument and their finding was as follows:

"The uncontroverted evidence is, inter alia, to the effect that while he had very specific information relating to who and

what was to be found, Detective Sgt Corcoran sought to verify this before being satisfied on the identity of the

occupants of the vehicle. We find as a matter of fact that the accused was not detained before his arrest. He was at

most discouraged from leaving the car or the vehicle for a very short period, but has made no allegation in evidence of

having been prevented from doing so. By reason of the foregoing, we reject the primary application".

On appeal, the Court of Criminal Appeal was satisfied that the finding made by the Special Criminal Court was one which they were

entitled to make on the evidence before them.

4.6 The above authorities make clear that a certain degree of latitude regarding the duration of roadside enquiries made by a member

of an Garda Síochána is permitted, unless the duration is unreasonable. In the circumstances of the present case, as the duration of

the complete search of the accused, his car and his passenger, including awaiting the arrival of the Dog Unit and their subsequent

search, immediately prior to the accused being arrested for the commission of an offence of driving under s.4 (8) of the Road Traffic

Act, 2010, lasted a total of 15 minutes, it is clearly a reasonable period of time to enable Garda McDonnell to carry out his

investigation and within the remit of his powers under s.23 of the Misuse of Drugs Act, 1977, as amended.

4.7 Section 23 of the Misuse of Drugs Act, 1977, as amended, specifically permits a member of An Garda Síochána to prohibit a

person from driving away from the scene or leaving the scene while a drugs search is being carried out on their vehicle. It would be

absurd if a failure by a member of An Garda Síochána to make such a specific request in circumstances where an accused does not

attempt to leave their car or ask to do so, as in the present case, rendered invalid a subsequent arrest for driving whilst under the

influence of an intoxicant under s. 4 (8) of the Road Traffic Act, 2010. If a member of An Garda Síochána acts in a reasonable manner

in the exercise of powers assigned to him under legislation, he should not be prevented from properly investigating a purported crime.

As Clark J. held in State (Higgins) v Farrell [2009] 4 IR. 189 at para 21:

"As guardians of the peace, with a duty not only to investigate crime but also to prevent its occurrence, members of An

Garda Siochcma are required on a daily basis to make on the spot decisions based on available information which may

derive from no more than educated impressions. Once the actions of the Gardaí are reasonable and bona fide and there

is no evidence of abuse of power or arbitrary behaviour, the courts should be very slow to put technical procedural

obstacles in the way of the day to day investigation of crime. "

4.8 Regard must be had for the fluidity of the investigation in circumstances where a strong odour of cannabis was smelled by Garda

McDonnell and the search of the accused, his car and passenger was carried out within a period of time no longer than 15 minutes.

The only delay that occurred was while Garda McDonnell awaited the arrival of the Dog Unit. The accused was informed at each stage

of the search as to what was happening, I am satisfied that the manner in which the search was performed was lawful.

4.9 Furthermore, I am satisfied that the continued detention of the accused while Garda McDonnell searched his car and passenger

was part and parcel of the one investigation, and was, therefore, a lawful detention and a lawful exercise of his powers under s.23 of

the Misuse of Drugs Act, 1984, as amended, in particular s. 23 (1) (a). The accused did not attempt to leave the scene. Had he

sought to leave, Garda McDonnell would have been permitted to require him not to remove his car, or to remain with his car until the

search was completed, as a permitted under s.23 of the Misuse of Drugs Act, 1984, as amended.

4.10 Thus I am satisfied that the subsequent arrest of the accused by Garda McDonnell pursuant to s. 4(8) of the Road Traffic Act

2010 was a lawful arrest as he was lawfully detained whilst the search of his person, that of his passenger and his car was

completed.

4.11 The questions posed are answered as follows:

i. Was the detention at the roadside by Garda McDonnell of the accused lawful and permissible under the terms of s.23 of

the Misuse of Drugs Act?

Yes.

ii. Was the subsequent arrest of the accused under Section 4 (8) of the Road Traffic Act 2010 a lawful arrest?

Yes.

iii. Does not arise.