A RULING THAT breathalyser test statements were not valid if printed in the English language only – which had held up 1,400 alleged drink driving prosecutions – has been overturned by the Court of Appeal.
The Director of Public Prosecutions had appealed a District Court ruling which found that a failure to produce the other half of a statement showing breath-alcohol levels – in Irish – was not evidence at all.
Counsel for the DPP, Diarmaid McGuinness SC, had told the three-judge court that the case had its roots in a road traffic prosecution of Mihai Avadenei (29) with an address in Swords, Co Dublin.
Mr McGuinness said it related to a breath test machine, Evidenzer Irl, which reveals the levels of alcohol in a person’s breath and produces two identical statements for immediate signature by the person and a garda. The statement would then be admissible under the road traffic act, he said.
However, during during District Court proceedings in 2014, solicitor Michael Staines, for Mr Avadenei, argued that the statement produced following the Evidenzer test was not valid because it was in English only.
District Court judge Colin Gibbons ruled that the document had not been “duly completed” and he asked the High Court for confirmation.
Mr Justice Seamus Noonan agreed and ruled that the person providing the specimen “shall be supplied immediately by a member of An Garda Síochána with two identical statements in the prescribed form”.
Mr Justice Noonan said a failure to reproduce an entire half of the prescribed form – the Irish language ‘half’ – meant it was not evidence and could not be admitted.
Repetition of evidence
Allowing the appeal today, Mr Justice John Edwards said the “deviation was purely one of form rather than substance”. What was omitted was the repetition of the information in Irish.
Mr Justice Edwards said he was in complete agreement with the learned trial judge up until a point.
Normally, one would expect the deviation to be fatal unless otherwise provided for in law and in this regard, he said, section 12 of the Interpretation Act 2005 applied to the construction of all statutes.
Mr Justice Edwards said the learned judge erred in holding that section 12 had no application. On the contrary, Mr Justice Edwards said section 12 would have entitled the District Court judge to conclude that the statement automatically produced, which had been used to analyse Mr Avadenei’s breath sample, were “in the prescribed form”.
As a consequence, when the forms were completed, they were “duly completed”, the judge said.
Mr Justice Edwards said he would allow the appeal and answer the question posed by the District Court judge in the negative.
Mr Justice George Birmingham and Mr Justice Alan Mahon both said they agreed with Mr Justice Edwards’ judgment.
The court will hear arguments as to costs at a later date.
Counsel for the Director of Public Prosecutions, Diarmaid McGuinness SC, said his client was anxious to get the order of the Court of Appeal finalised as there was a lot of confusion in the lower courts.
Mr McGuinness said District Court judges have been taking different views on the matter.
At the appeal hearing in February, counsel for the DPP, James Dwyer BL, told the court that 1,400 alleged drink-driving prosecutions were being held up across the country as a result of the ruling.
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