About this case:

• Citation:
  [2024] IESC 54
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Ms Justice Iseult O'Malley

Delivering judgment for the Supreme Court, Ms Justice Iseult O’Malley determined that: “To ‘use’ an apparatus ‘for indicating the presence of drugs’ must mean using it to get a result that will indicate the presence (or absence) of drugs. In my view that, in turn, means that the person required to provide the specimen by using the apparatus (the driver) must wait for the result — the use of the apparatus does not conclude until that point…” 

Background

The DPP appealed against a decision of the High Court finding that the Road Traffic Act 2010 (as amended) did not at the relevant time confer a power on An Garda Síochána to require a driver who had given an oral fluid specimen to wait at a checkpoint until the drug-testing apparatus had completed its analysis of the specimen.

The respondent was stopped at a checkpoint and a sample was collected from him. He was informed by gardaí that he was required to wait for up to one hour for the result of the analysis, although the total time that the respondent was actually required to wait was under 20 minutes.

The testing revealed the presence of cannabis and, following his arrest, a blood sample taken from the respondent at a garda station revealed that the respondent had been driving under the influence of cannabis and cocaine which were present in his sample at concentrations greater than those specified in the schedule to the 2010 Act, contrary to s.4(1A) thereof.

At hearing, the District Court posed a case-stated to the High Court in respect of the lawfulness of requiring a person to wait at a checkpoint for up to an hour whilst the drug-testing equipment completed its analysis.

The High Court

In the High Court, Mr Justice Garrett Simons observed inter alia that the legislation did not envisage a time-lag between the provision of the specimen and the indication of the presence of drugs, did not provide that a positive result could be relied upon as reasonable grounds for an arrest, and there was no express power to detain a person to await the test result.

On that basis, Mr Justice Simons found that the power to detain a person pending the result of the analysis could not be implied where it was not apparent that the requirement to provide an oral fluid specimen was to assist in forming an opinion for the purposes of the power of arrest.

The DPP appealed on grounds that the interpretation adopted by the High Court was unduly narrow, contending that it was trite law that where gardaí are entitled to perform a particular procedure they are entitled to a reasonable period in which to do this and that requiring the respondent to remain at the roadside pending the outcome of the test was objectively justified and reasonably necessary to give effect to the clear purpose of the test, which was to establish the presence of drugs in oral fluid with the objective of assisting in the formation of an opinion necessary to ground arrest.

The Supreme Court 

Ms Justice O’Malley considered that the entire scheme of s.10 of the 2010 Act, providing for the setting up of traffic checkpoints, required consideration in order to determine the function and purpose of the oral fluid test.

In particular, the court found it “striking” that unlike previous measures, the section provided for the requirement to provide a specimen in the absence of any grounds for suspicion of the commission of an offence.

Ms Justice O’Malley also highlighted that two separate offences could be committed by a ‘drug driver’, one being the offence of being under the influence of an intoxicant such that they were incapable of properly controlling the vehicle, for which factual evidence as to the driver’s condition or driving was required, and secondly, the technical offence element of the offence in relation to the concentration of a drug in the driver’s blood.

Observing that in circumstances where the legislation specifically referred to the concentration of a drug in “blood”, the judge considered that gardaí could not conduct a blood test at the roadside and that same was required to be taken by a nurse or doctor at a garda station following arrest.

Accordingly, the Supreme Court found that the trial judge fell into error in attaching significance to the fact that the legislation did not expressly provide that a positive result from an oral fluid test could be relied upon as giving reasonable grounds for an arrest on suspicion that an offence had been committed.

Ms Justice O’Malley observed: “If a positive result could not be seen as providing grounds for suspicion, and therefore as providing grounds for an arrest, it is difficult to see what purpose it could have.”

Turning to the issue of the time lapse between stopping a driver and the result of their oral fluid test, the court pointed out:

Finding that the issues in the case may have become obscured by the statement of the garda to the respondent to the effect that he was required to wait for up to one hour, Ms Justice O’Malley did not see it as necessary for any statutory purpose to imply any additional garda powers into the section and determined that this was an error of law on part of the garda.

Noting that the recent amendments to the 2010 Act made by s.13 of the Road Traffic Act 2024 may have clarified the position, the Supreme Court determined that, under the statute as it stood at the time, to provide a specimen by using an apparatus for indicating the presence of drugs clearly included a requirement to wait for a result.

The court observed that it was for the District Court to determine whether or not the error on part of the garda had any material effect in circumstances where the respondent’s actual wait time was significantly shorter than an hour.

Conclusion

Accordingly, the Supreme Court allowed the appeal.

Director of Public Prosecutions v. O’Flaherty [2024] IESC 54