High Court dismisses challenge to breath test detention delay as de minimis human error.

Neutral Citation [2016] IEHC 723

THE HIGH COURT

RECORD NO: 2016/361 SS

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

DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

AND

GERARD LYNCH

Accused

JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 21st day of November 2016

The issue in this case

1. This case is the latest in a series of cases relating to the pre-test observation period in the context of the administration of a

breath alcohol test by the Gardai, who use specialised equipment for that purpose. It comes before the Court by way of a

consultative case stated from the District Court for the area of Kilrush. The net issue is whether the detention of the accused was

rendered unlawful by reason of the lapse of a period of time during which the pre-test observation of the accused was not

commenced at Kilrush Garda station pending the arrival of a Garda from Ennis station.

The Case Stated

2. The accused was charged with the offence informally referred as to ‘drunk driving’. The evidence before the District Judge was

that the accused was stopped at an authorised checkpoint, failed a breath test and was arrested at 11pm. He was conveyed to

Kilrush Garda station, with a time of arrival of 11.25pm. He was processed in the normal way, following which, a request was made to

Ennis Garda station, some 43 km away, to send a Garda to Kilrush for the purpose of operating the Evidenzer breath testing machine.

This request was made at 11.40pm. This Garda arrived at 11.56pm and commenced a period of 20 minutes observation, concluding at

12.19am. He then administered the test.

3. The case stated indicates that the following evidence was given:

“In cross-examination, the arresting Garda was asked why the period of observation had not commenced until the

arrival of the Garda from Ennis. He replied that this was procedure. He confirmed the assertion in his statement that

following the conclusion of the 20 minutes’ observation period by the specialist Garda, he (the arresting Garda) had

continued the observation of the accused while the specialist Garda prepared the machine. He further stated that it was

procedure of the member conducting the Evidenzer machine to conduct the twenty minute observation period. On re-

examination he stated that he was not at that time trained in the use of the Evidenzer machine, though he has since

been trained. Under cross-examination, the custody Garda stated that she could not recall if the arresting Garda had

telephoned ahead to advise of the arrest. Under cross-examination, the specialist Garda did not accept that the

arresting Garda had continued with observation of the accused following the 20 minute period while he (the specialist

Garda) was preparing the machine. He said that the observation period had ended and both Gardaí were present.”

(emphasis added)

4. It was argued on behalf of the accused that there was no objective justification for the delay in the commencement of the

observation period until 11.59pm, almost an hour after his arrest. It was argued in particular that he was in the Garda station for 34

minutes before the observation period was commenced. It was argued that the arresting Garda could have carried out the

observation in the Garda station in the circumstances, or that Ennis Garda station could have been notified at any time after 11pm of

the need for the presence of a specialist Garda. The solicitor for the accused referred the District Judge to the cases of DPP v. Finn

[2003] 1 I.R. 372 and DPP v. McNiece [2003] 2 I.R. 614. The prosecuting Superintendent argued that the Garda action was

objectively justified and that the Garda operating the machine had to be satisfied in respect of the observation period.

5. The case stated records that the District Judge took the following view:

“Having considered the above evidence and submissions, I am satisfied that the issue for decision is whether the delay

of 29 minutes between 11.30p.m. and 11.59p.m during which nothing happened pending the arrival of the Garda from

Ennis is justified or not. I formed the view that the delay was not justified the only explanation being offered for the

delay in the commencement of the observation was that it was “procedure” and one person must deal with all stages of

the procedure. I disagree with this position. The arresting Garda could have carried out or at least commenced the

observation. The statement that the reason this was not done was because of procedure does not assist the Court.

In light of the aforementioned authorities and the emphasis therein on the need to justify delay objectively, especially

when it is challenged, I therefore formed the view that the deprivation of the accused’s liberty, which was for the

specific and sole purpose of carrying out a particular procedure, had been unduly prolonged, that the accused was in

unlawful custody before the observation period began and that evidence generated from the said procedure was

therefore inadmissible

I am therefore minded to dismiss the case against the accused.”(emphasis added)

6. The District Judge stated the following questions by way of consultative case stated:

“(a) Was the accused deprived of his liberty for a period of time longer than was reasonable in the circumstances?

(b) Accordingly, am I correct in my view that the charge against the accused should be dismissed?”

Previous authorities

7. Previous cases involving the 20 minute observation period have not directly addressed the precise point in the present case as

identified above, which essentially concerns the awaiting of a trained Garda who would not merely administer the test, but also carry

out the pre-test observation. Previous cases have addressed the following issues:

• The justifiability or reasonableness of the general policy of having a 20 minute pre-test observation period; this was the

issue in DPP v. Finn [2003] 1 I.R. 372, DPP v. McNiece [2003] 2 I.R. 614, and DPP v. Stack [2016] IECH 159.

• The justifiability or reasonableness of a decision by An Garda Síochana not to commence the period of 20 minutes formal

observation in the patrol car or while otherwise in transit with the accused person, but rather to await the arrival at the

Garda Station where there is a more controlled environment for conducting the observations; DPP v. McNiece [2003] 2 I.R.

614, DPP v. O’Sullivan [2015] IEHC 693.

• Whether an unexplained period of 7 minutes in addition to a 20 minute period of observation rendered a detention

unlawful; DPP v. Fox [2008] 4 I.R. 811.

• The justifiability or reasonableness of an extra period of detention of 20 minutes which resulted from the fact that the

Garda conducting the observation (a) had been momentarily distracted from the task in hand, and (b) became aware that

the testing equipment was not yet available because it was in use, and decided that he should start the observation

period again; DPP v. Dardis [2015] IECA 284.

• Whether it is acceptable for an untrained Garda to carry out the pre-test observation period: DPP v O’Sullivan [2015]

IEHC 693.

The lapse of time in the present case and the explanation for it

8. There was some degree of argument between the parties as to what the District Judge had actually found as the reason for the

delay, namely whether it was: (a) to ensure that one Garda would carry out both the observation and the test; or (b) to ensure that

a trained Garda would carry out both the observation and the test. On this narrow issue, I appreciate the District Judge did not

explicitly use the word ‘training’ or ‘trained’ in reaching his conclusions, but I am of the view that his words must be interpreted in light

of the evidence that he had heard and also the common-sense consideration that, were it not for the training issue, there would be

no reason whatsoever to wait for another Garda to arrive and any such ‘procedure’ would be meaningless. I will approach the case on

the basis that the District Judge was seeking guidance on the questions posed, in a context where it was clear that the reason that

the Ennis Garda was awaited was because he had training in the use of the machine and the procedures surrounding its use, whereas

the Kilrush Garda did not.

9. Counsel on behalf of the accused firmly anchors his argument that the accused person’s detention became unlawful on the Finn

decision; he relies upon the fact that the arresting Garda in the present case had said that he was following ‘procedure’ when he

decided not to commence the observation period himself but to await the arrival of a Garda from another station who would carry out

not just the test but also the pre-test observation period. DPP v. Finn [2003] 1 I.R. 372 was a decision in which the Supreme Court

held that an accused person’s period of detention had become unlawful by reason of the period of 20 minutes observation, in

circumstances where it was clear that this period of detention resulted from a general policy of An Garda Síochána but in

circumstances where there had been no evidence before the Court explaining or justifying the policy. Subsequently, the policy of 20

minutes pre-test observation was held to be justified in DPP v. McNiece [2003] 2 I.R. 614, upon appropriate evidence as to the

reasons for the policy having been adduced before the Court. Counsel on behalf of the accused in the present case argues that Finn

remains authority for a general proposition that in circumstances where an additional period of detention is the result of a Garda

policy, as distinct from something that happened by chance on the evening in question, it is incumbent upon the prosecution to

produce objective evidence justifying this policy, and that no such evidence had been produced in this case. He argues that the

Garda evidence, as appeared from the case stated, was simply to the effect that there was a ‘procedure’ in place requiring that one

Garda carry out both the observation and the test itself. He argues that the presence of such a policy distinguishes the case from a

case such as Dardis or Fox, where the lapse of time was due to chance events on the evening in question.

10. Counsel on behalf of the accused also points to the decision in DPP v. Stack [2016] IEHC 159 in which Barrett J., having engaged

in a review of the authorities after Finn, drew a distinction between two categories of case, namely (1) those where delay occurs

through chance circumstance; and (2) those where delay occurs through a standard prolongation of detention, and described the

application of different principles to each category. Barrett J. said that in cases falling into the first category, the question of whether

delay was unreasonable falls to be considered having regard to all the circumstances and that generally speaking, a delay of 20

minutes is not the kind of delay which would normally be treated as rendering unlawful an otherwise lawful detention. In contrast, he

said that in cases

“where delay arises in the course of Garda detention because of the deliberate introduction of a discrete and defined

minimum period of detention i.e. a conscious prolongation in all instances, this must be justified by reference to one or

more objective reasons, if it is to be proved lawful.”

Counsel on behalf of the accused argues that the present case falls into the latter category.

11. Counsel on behalf of the prosecution argues that the decision in McNiece made it clear that An Garda Síochana had a discretion

as to certain matters related to the pre-test observation as well as the test, and that this discretion extended to matters such as

who would carry out the test as well as where it would be carried out. It was therefore not necessary to call evidence to justify what

had taken place. It was also pointed out that the evidence given in McNiece as to why the observation period was necessary

included evidence as to the possibility of the suspect regurgitating, as well as simply ensuring that the suspect did not ingest

anything, and that it was not unreasonable to wait for a trained Garda who would know precisely what he or she was required to

observe before administering the test.

12. While the argument that the Garda’s use of the term ‘procedure’ in the present case does, perhaps, at first sight, suggest that

the case might fall into the Finn –McNiece-Stack category of case involving a fixed policy which requires objective justification, I am

not convinced that the matter is as simple as that, having considered all of the authorities opened to me. I note also that none of

these other authorities appear to have been opened to the District Judge.

13. First, I am mindful of the fact that the issue in Finn, McNiece and Stack concerned a clear and definite nationwide Garda policy to

conduct a 20-minute pre-test observation, a period which was and would be fixed in every case. The position is not as clear-cut in

the present case. For example, while the Garda in the present case said it was ‘procedure’ to wait so that one (trained) Garda would

do both the test and the observation, this cannot be a rigid and nationwide Garda policy, because it is clear from the O’Sullivan case

that the Garda who conducted the observation was untrained. Further, any such ‘procedure’ to wait for a trained Garda, even if it

existed, would not necessarily lead to a fixed 20-minute delay as did the observation period policy in issue in the Finn case;

presumably in some instances, a trained Garda would be closer to hand, so the delay might only be five or ten minutes and in others

he or she would be further away, leading to considerable differences in the waiting periods in different cases. Therefore I am not

convinced that this ‘procedure’, even if it did exist, amounts to the kind of procedure or policy in issue in Finn, which was described

by Murray J. in the following terms:

“the introduction of a discrete and defined minimum period of detention, for a forensic purpose, to be observed as a

matter of practice in every case in which a person is arrested under s.13(1)(a) of the Road Traffic Act 1994 with a view

to requiring him or her to provide specimens of breath. This was not so much delay as the observance as a pre-

established practice according to which there is inserted a discrete period of detention between the arrival of the

arrested person at the garda station and the taking of the samples. It is a prescribed and conscious prolongation of an

arrested person’s period of detention in all such cases.”

14. Secondly, I am mindful of the comments of Murray J. in the McNiece case as to the matters in respect of which there is a

legitimate area of Garda discretion. Dealing with the argument that the observation should have been commenced while the accused

was in transit to the Garda station following his arrest, Murray J said:-

“In my view, this argument is not well founded. What is involved here is the lawful administration of a precise test by the

use of an intoxilyser to determine the level of alcohol in an arrested person’s breath. The test has potentially important

consequences for the arrested person and for the public interest which is concerned with the obtaining of reliable

evidence of the commission of an offence in appropriate cases. Once the necessity of an observation period of twenty

minutes is objectively justified then the State must have a reasonable discretion as to the manner and circumstances in

which that can be effectively carried out. It seems to me entirely rational and logical that the State would have

administrative arrangements which placed on a designated person, in this case the trained operator of the machine, the

responsibility for ensuring that the appropriate conditions existed and that the proper procedures were followed for the

effective administration of such a precision test at the time when it was being given. The risks and potential frailties of

the State relying on such precise observations of gardaí in the fluidity of an arrest situation or while driving a patrol car

as the basis on which to carry out a valid test and to establish it as correct seem to me so self-evident as to require

little comment particularly when such necessary observation for the purposes of such a test can be better and more

reliably carried out in a controlled situation under the eyes of a garda member designated for that purpose. Unless there

is that kind of controlled observation there would always be the risk that an accused could claim to have surreptitiously

taken something while the garda member was momentarily distracted.” (emphasis added)

15. These comments support the view that the Garda Síochána have discretion with respect of matters such as where and by whom

the observation is carried. I note also that Keane J. in the O’Sullivan case re-emphasised this discretion:

“while it would no doubt be better still if that observation could be carried out by a person formally designated for that

purpose, in my view it does not follow that the failure to so designate a member of An Garda Síochána makes the

conduct of that observation by an undesignated member unnecessary or unreasonable (still less does it render the

detention of a suspected person during that period unlawful). Fourth, no basis has been put forward for the suggestion

that it is scientifically, or otherwise, essential that the person who conducts the required observation must be the

person designated to administer the relevant test thereafter or, for that matter, a person trained to administer that

test. Finally, I cannot overlook the Supreme Court's dictum that, once it is accepted that a 20 minute observation

period is necessary prior to the administration of the relevant test, it is clear that the State must have a reasonable

discretion as to the manner and circumstances in which that test can be effectively carried out.”

16. Thirdly, apart from the decision in Finn, the Superior Courts have been unsympathetic to complaints about relatively short periods

of delay before the administration of the breath test where such delays have arisen in the context of the ordinary day-to-day

exigencies of Garda activity. In DPP v. Fox [2008] 4 I.R. 811, the Supreme Court rejected an argument founded upon an additional 7

minutes detention over and above the 20 minute pre-test observation period. In DPP v. Dardis [2015] IECA 284, the Court of Appeal

rejected an argument that a 20 minute period of delay rendered the detention unlawful in circumstances where the delay was due to

the (a) the observing Garda having become momentarily distracted towards the end of the observation period; and (b) the observing

Garda becoming aware that the equipment was already in use, both of which led him to commence the 20 minute observation period

again. The Court said:-

“It took slightly over an hour from the time Mr. Dardis arrived in the Garda station to when he gave the breath samples.

The judge was satisfied that a second observation period was undertaken for two reasons; because the Evidenzer

machine was being used by someone else and because the Garda momentarily lost sight of Mr. Dardis while the machine

was being operated.

33. Garda Kilbride gave evidence that he began a 20-minute observation period at 00.45, but his attention was diverted

away briefly so he had to do it again to be satisfied that the arrested person had not consumed anything. He also said

that he became aware that the test apparatus was in use and so he had to wait for it.

34. Just what is the basis for the acquittal of the accused? On the judge's facts, the accused was properly arrested,

was lawfully in the Garda Station, was presented with the breath test apparatus when it became available and, prior to

that happening, he was observed for the requisite time period.

35. Mr. Dardis was not detained for longer than was necessitated by the availability of the machine. The only point is

that he was “observed” by the Garda for an unnecessary period of 20 minutes. That cannot justify an acquittal. The

accused was not in unlawful custody, still less was there anything unconstitutional. In fact, there was not any extra

detention, but even if there had been, it was not unreasonable or unjustified or unexplained.

36. It must be remembered that the accused could have been required to furnish a blood or urine sample, which would

mean he had to wait around for the doctor to arrive; if more than one arrested person was in line for samples that

would entail delay far beyond the 20 minutes in question here. The real point is that the short delay in this case is

explained, as the judge found, by the wait for the machine, which is a rational ground. Taking either explanation, as

found by the judge, and considering them separately or together, namely, the unavailability of the machine and the fact

that the Garda was distracted momentarily, the delay was explained. Hence, the judge was incorrect in law in finding the

additional 20 minutes detention unjustified such as to render the continued detention unlawful.

37. In summary, therefore, the delay at issue here - some additional 20 minutes or so - must be regarded as another

example of a “human delay of a routine or modest nature” to adopt the words of Murray C.J. in Fox and was in the

circumstances essentially de minimis.”

17. The point made by the Court of Appeal in Dardis with respect to the arrival of a doctor is further emphasised by the decision in

O’Neill v McCartan and DPP [2007] IEHC 83. In that case, Charleton J. held that there had been no culpable delay on the part of the

Gardaí in ensuring the attendance of a doctor in a drink driving case, in circumstances where he had been telephoned after the

accused had been processed on arrival at the station and it took almost an hour for the doctor to arrive. Charleton J. said that the

arrival of the doctor within an hour of that time “must be regarded in the real world, as being a good service, if not a very good one”

and that the Garda, far from acting with contempt towards the accused person's constitutional right to liberty, “did everything

possible to ensure that the relevant procedure was completed within a reasonable time.” It seems to me that it would be somewhat

incongruous if a delay of the order of 30 minutes rendered a detention unlawful because the person awaited was a trained

breathalyser Garda, whereas a delay of one hour did not, because the person awaited was a doctor.

18. Having carefully considered all of the authorities in this area, it does not seem to me that the mere fact that the Garda in the

present case referred to ‘procedure’ as being the reason for awaiting the arrival of a trained Garda to carry out the pre-test

observation brings this case into the Finn category of case, involving a clear and definite fixed policy of a prescribed period of time, in

respect of which objective evidence justifying the delay was required. This would appear to me to be a somewhat mechanistic

application of the Finn case and I am not convinced that the present case does fall within the type of policy identified in that case,

having regard to the precise language used by Murray J. in the Finn decision, set out above. That being so, and having regard to the

length of the delay in the present case, which is not of such an order that it would of itself normally bring a period of detention into

the area of illegality, I take the view that there was no unlawful detention in this case.

19. Accordingly, I would answer the questions posed in the case stated as follows: (a) No, and (b) No.