Friday 23 March 2018

Supreme Court: Correct to acquit woman who had cough and chest infection

Tim Healy

A WOMAN charged with refusing to provide a breath specimen for alleged drink driving after she was unable to do so due to a cough and chest infection was correctly cleared of the offence, the Supreme Court ruled.

The court heard the decision will affect a large number of similar cases with one judge saying it was "a monument to the DPP's policy of seeking to convict on a technicality."


The case arose out of the arrest of Maresa Cagney (39), Seamount, Mount Merrion, Dublin, on suspicion of drink driving at Merrion Row on August 13, 2004.


She was taken to Pearse Street Garda Station where she was asked to give two samples of breath through an intoxilyser machine but was unable to do so due to a cough and chest infection.


The following day her GP, while finding no clinical symptoms of these ailments, diagnosed her as suffering from a post-viral condition and he expressed the view she would not have been able to provide a breath sample, the court heard.


When the prosecution came before the courts, a Circuit Court judge cleared her of the charge of refusing to provide a specimen after finding a "special and substantial reason" existed for her failure to do so.


The DPP asked that the case be referred to the Supreme Court to clarify the law.


Among the issues which the court was asked to deal with was whether there is an obligation on an accused person, in order to avail of a defence under Section 23 of the Road Traffic Act 1994 for failing to comply with the breath test, that they had voluntarily offered to provide the alternative of blood or urine.


Mr Justice Frank Clarke, on behalf of the three-judge Supreme Court, rejected the DPP's argument that the natural and ordinary meaning of the words in Section 23 meant that for a person to avail of the defence, they must offer to give blood or urine and do not have to be "called upon" (by the garda) to do so.


Mr Justice Clarke said while in other cases there is ordinarily no obligation on gardai to alert a person under suspicion of an offence of possible defences to the charge being brought against them, such as the defence of provocation in an assault matter, the law in this case was different.


As a constitutional necessity, this (Road Traffic) legislation acknowledges it is appropriate to make provision for people who may not have the ability or capacity to give a breath sample for a "special and substantial reason", he said.


It would therefore be an insufficient vindication of the rights of a person with an incapacity if they were to lose their entitlement to the defence of incapacity out of ignorance of the law, he said.


Mr Justice Clarke said there was an obligation on the gardai, either when giving the original warning about the penalties for failure to comply with providing a breath sample,  or immediately after the person fails to give it, that the garda should alert the person that in order to rely on the defence of "special and substantial reason" they must offer to provide blood or urine.


In those circumstances, an accused person is entitled to an acquittal, he said.


For the avoidance of doubt, he added, it should be emphasised that the absence of a warning does not entitle the person to an acquittal unless he or she has first satisfied the trial judge of the existence of a special and substantial reason.


The court rejected an application from the DPP for an adjournment of the issue of costs after counsel for the DPP said they wanted to consider the decision as it would "affect a large number of cases."


The court awarded costs against the DPP with Mr Justice John Murray commenting that the case was "a monument to the DPP's policy of seeking to convict on a technicality."

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