High Court: Garda opinion reasonably formed despite misunderstanding significance of breathalyser result

About this case:

• Citation:
  [2023] IEHC 647
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Siobhán Phelan

Delivering judgment for the High Court, Ms Justice Siobhán Phelan considered that “the threshold for the formation of the requisite opinion for arrest is low. In the absence of evidence of a lack of bona fides the arresting garda is entitled to form the requisite opinion based solely upon the failed test…”

Background

At approximately 3:55am on 10 May 2020, the defendant was seen driving erratically and was followed by a Garda patrol car. Having stopped the defendant, Garda Kelly smelled alcohol on the defendant’s breath and found his speech slurred. Garda Kelly cautioned the defendant, following which he admitted to consuming a drink earlier that evening. 

Having formed the opinion that the defendant was intoxicated, the Garda performed a breathalyser test on the defendant, which the defendant failed. The defendant was arrested pursuant to s.4(8) of the Road Traffic Act 2010, as amended. 

Two breath samples collected at Dún Laoghaire Garda Station indicated a reading of 63 micrograms of alcohol per 100ml of breath, and accordingly the defendant was charged with an offence of ‘drink-driving’ contrary to ss.4(4)(a) and (5) of the 2010 Act. 

In the course of the defendant’s prosecution, Garda Kelly stated under cross-examination that the only opinion he formed in respect of the defendant prior to the initial breathalyser test was that he had consumed an intoxicant – not that by virtue of his consumption of alcohol the defendant was incapable of properly controlling his vehicle. Garda Kelly confirmed that he had not formed an opinion that the defendant had committed an offence under s.4 of the 2010 Act prior to the breathalyser test.

Garda Kelly stated that he understood that a failed breath test merely indicated the presence of alcohol in the defendant’s breath, but did not indicate the actual concentration of alcohol nor did a breath test determine that the concentration exceeded what was permissible for that driver.

The District Judge formed the view that as Garda Kelly in his own estimation did not gain any further information after the test, he could not have moved from not having the necessary opinion prior, to having the necessary opinion subsequently, as nothing had changed. The District Judge believed that the breathalyser does show levels indicating whether a person is over the limit, and that it could be said that this was recognised in DPP v Gilmore [1981] ILRM 102.  

The District Court found that it could not be satisfied beyond reasonable doubt that the Garda could have formed the opinion that he suggested he did, as the Garda did not know or believe that the test gave the indication that the subject was over the legal limit, and so she could not be satisfied of the lawfulness of the arrest. 

The State relied upon DPP v McGovern [2019] IECA 293, in which an opinion formed solely on the basis of a failed breath test which the Garda said provided no information as to the concentration of alcohol detected was accepted as justified by the Court of Appeal. The District Judge felt that she could not logically find as a matter of fact that the opinion in this case could have logically been formed.

The District Judge referred a question by way of consultative case stated to the High Court as to whether, notwithstanding McGovern, she was entitled to find as a matter of fact that she was not satisfied that Garda Kelly could have reasonably formed the necessary opinion to justify the defendant arrest.

The High Court

Ms Justice Phelan began by setting out s.4 of the 2010 Act, focusing on s.4(8) which states that a Garda “…may arrest without a warrant a person who in the member’s opinion is committing or has committed an offence under this section.”

The Court considered DPP v McGovern [2018] IEHC 577 highlighting that the High Court in that case had concluded that as the Garda had stated that he was of the opinion that the accused had consumed an intoxicant and had committed an offence under s.4 of the 2010 Act, it was clear that the only evidence upon which this opinion was based was the result obtained from the breath test.

Noting that the ratio of McGovern was “that a ‘fail’ result which evidences the presence of alcohol but not that the person is over the prescribed limit, is sufficient on its own to ground a reasonable opinion that a person is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle”, Ms Justice Phelan found that the case before her was different as the reliance on the failed test result was supported by additional evidence, being the defendant erratic driving, slurred speech and his admission.

Finding that the facts of the proceedings before her and those of McGovern were alike only to the extent that reliance was placed on the failed breath test in forming the necessary opinion to arrest, the Judge found that the basis for forming the requisite opinion in this case was stronger than in McGovern.

Ms Justice Phelan determined that “if, as a matter of law, there is no illogicality in the opinion being formed on the basis of a failed breath test alone as in McGovern, there can be no illogicality where the failed breath test is added to other factors…”

The Court emphasised that the High Court in McGovern made clear that “the threshold for the formation of the requisite opinion for arrest is low. In the absence of evidence of a lack of bona fides the arresting garda is entitled to form the requisite opinion based solely upon the failed test, even though this evidences the presence of alcohol but not intoxication to such extent as to be incapable of having proper control of a mechanically propelled vehicle”.

Ms Justice Phelan considered that the District Judge’s concern arose “from her perhaps superior knowledge, not shared by the arresting Garda and not based on evidence in the case, as to the capacity of the breath test to show a level of intoxication coupled with the Garda’s mistaken view as to the meaning of the “fail” result meant that he could not logically have formed the requisite opinion”.

Conclusion

Finding that the Garda’s error as to the significance of the breath test reading did not undermine the reasonableness of his opinion, the High Court was satisfied that the defendant’s arrest was lawful and answered the question posed in the negative, confirming that where the District Judge did not impugn the bona fides of Garda Kelly’s opinion, she was not entitled to find that he could not reasonably have formed the requisite opinion.

Director of Public Prosecutions v Flanagan [2023] IEHC 647