20-minute observation before breath-alcohol tests does not make detention unlawful

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The Gardaí had been accustomed to preceding breath-alcohol tests with a 20-minute observation period to ensure that the test was a true breath test and not contaminated by alcohol in the mouth.

The question before the Court was whether this was still necessary and lawful in light of the introduction of a new type of breathalyser known as the ‘Evidenzer’, which states in its manual that no observation period is required.

Two individuals, Ronan Stack and John Foley, had on separate occasions been held in a police station under s.4(8) of the Road Traffic Act 2010. They had been informed that they would be observed for 20 minutes, after which they were assessed using an Evidenzer.

In both cases, evidence was given by members of the Gardaí that they had been trained by the Medical Bureau of Road safety to have a 20-minute observation time when being taught to use the Evidenzer.

The District Court judges referred the following question to the High Court:

“In circumstances where it is acknowledged that the Manufacturer’s Manual for guidance of the Operator of the Evidenzer machine for breath testing does not require an observation period of twenty minutes prior to a test, and evidence has been heard that the Accused was detained for a period of twenty minutes prior to the formal requirement being communicated to him, pursuant to Section 12(1)(a) of the Road Traffic Act 2010 for the provision of breath specimens, did this constitute an unnecessary and unreasonable prolongation of his detention, thus rendering his detention unlawful and leaving the evidence, obtained by way of breath sample provided during such detention, tainted and inadmissible evidence against the Accused?”

The High Court judge Mr Justice Max Barrett noted a “harmonious quintet” of cases which were relevant: DPP v. Finn 1 I.R. 372, DPP v. McNiece 2 I.R. 614,DPP(Curran) v. Foley IEHC 11, DPP v. O’Sullivan IEHC 693 and DPP v. Dardis IECA 284.

He noted a constant adherence within the cases to “(a) the notion of reasonableness, by which the lawfulness of delay which, in effect, arises from the chance circumstance of life falls to be gauged, and (b) the need for justification by reference to objective reasons where one moved beyond the chance circumstance of life to the deliberate introduction of a discrete and defined minimum (20 minute) period of detention.”

He then identified key principles which could be taken from the case law.

First, that the onus was on the prosecution to establish beyond reasonable doubt, that a defendant had at all times been held in accordance with the law.

Second, delays through chance should be reasonable, and that reasonableness should be assessed with regard to individual circumstances. It was noted that generally speaking, a delay of 20 minutes simpliciter in dealing with an arrested person is not the kind of delay which could be treated as rendering an otherwise lawful custody, unlawful, absent special circumstances.

Third, in cases where delay was deliberate, it must be justified by objective reasons. In this regard, appropriate evidence may be forthcoming from a Garda witness alone.

Procedural steps, if objectively justified, would not be required to be authorised by statute or statutory regulations to be lawful, provided they are shown on the evidence to be reasonably necessary to give effect to the purpose for which the arrest was authorised by law.

Turning to the specific cases, it was noted that the Garda witnesses gave uncontroverted evidence before the District Court that they respectively applied a 20-minute observation period in accordance with training provided by the Medical Bureau of Road Safety – the body with responsibility under the Road Traffic Acts for the approval and supply of breathalysers.

It was clear therefore that the Garda witnesses gave reasonable and objective reasons for the detention period arising sufficient to satisfy the ‘reasonable necessity’ test identified by the Supreme Court in Finn and applied consistently in the years since.

As a result, the judge concluded that “having regard to all of the foregoing, the court’s respectful answer to the question posed by District Judge McNulty in the proceedings concerning, respectively, Mr Stack and Mr Foley, is ‘No’.”