Director of Public Prosecutions v Foley (Approved)

Factual and Procedural Background

This opinion concerns a consultative case stated from the District Court pursuant to section 52(1) of the Courts (Supplemental Provisions) Act 1961. The District Court posed a question to the High Court regarding the validity of a breath test administered by a garda and whether its potential invalidity rendered the subsequent arrest unlawful.

The underlying prosecution arose from an incident on 2 August 2021, where the Defendant was alleged to have driven a vehicle in a public place with a breath alcohol concentration exceeding the legal limit within three hours of driving. The garda observed signs indicative of intoxication, administered a roadside breath test which resulted in a "fail," and subsequently arrested the Defendant.

The Defendant had informed the garda that he had consumed some alcohol prior to driving but did not specify the time of consumption. The garda did not inquire further about the timing and was unaware of the manufacturer's instructions that recommend a twenty-minute wait after drinking before administering the breath test. The Defendant was coming from a property approximately five minutes away from the stop location.

The District Court had heard evidence from both parties without reaching a final adjudication or legal decision and referred the question to the High Court regarding the lawfulness of the breath test and arrest under these circumstances.

Legal Issues Presented

1. Whether the breath test is invalid, thereby rendering the arrest unlawful, where the garda administering the test acted bona fide but was ignorant of the manufacturer's instructions requiring a delay before testing after drinking.
2. Whether the breath test is invalid, thereby rendering the arrest unlawful, given that the garda was aware the Defendant was coming from an address five minutes from the stop location.

Arguments of the Parties

Defendant's Arguments

• The Defendant relied on precedent suggesting that if the garda knew or had reason to suppose that the Defendant had consumed alcohol within twenty minutes prior to testing, the test should be delayed accordingly.
• The Defendant contended that the garda should have afforded a twenty-minute observation period before administering the breath test, as per the manufacturer's instructions.
• The Defendant argued that the garda’s lack of knowledge of the device’s instructions rendered the arrest unlawful.
• The Defendant acknowledged no statutory provision mandates the twenty-minute wait but argued it was necessary for proof under relevant jurisprudence.
• The Defendant further submitted that ambiguous statements made by him should be interpreted in his favor, invoking a principle analogous to contra proferentem.

Prosecutor's Arguments

• The State submitted that the garda had no authority to compel the Defendant to specify when alcohol was last consumed and was under no obligation to inquire.
• The State relied on case law establishing that unless the garda knows or has reason to suppose recent consumption within twenty minutes, there is no requirement to delay testing.
• The State argued the garda’s opinion was formed at a low threshold and was bona fide, relying on the failed roadside breath test result.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully analyzed the legal requirements surrounding the administration of roadside breath tests and the formation of a lawful opinion to arrest. It emphasized that the threshold for a garda to form an opinion justifying arrest is low and requires that the opinion be honestly and reasonably held (bona fide).

The court noted that the garda in this case was unaware of the manufacturer's instructions requiring a twenty-minute delay after drinking before administering the test but acted in good faith based on the observations and evidence available at the time.

The court distinguished between the controlled environment of the garda station, where a twenty-minute wait is reasonably necessary to ensure reliable test results, and the roadside context, where such a delay is not mandated absent knowledge or reason to suspect recent drinking.

The court found that the Defendant’s vague statement about consuming alcohol prior to driving, without specifying timing, and the fact that the Defendant was coming from a nearby property did not provide the garda with reason to suspect consumption within the twenty-minute window.

Accordingly, the failure to delay the breath test did not invalidate the test nor render the arrest unlawful. The court rejected the Defendant’s argument that ambiguous statements should be interpreted in his favor, emphasizing that the garda had no role in eliciting or framing the statement.

Holding and Implications

The court answered both questions posed by the District Court in the negative, holding that the breath test was not invalid and the arrest was lawful under the facts presented.

The core ruling is that a garda who acts bona fide without knowledge or reasonable suspicion of recent alcohol consumption is not required to delay a roadside breath test, and failure to observe a manufacturer’s twenty-minute wait instruction does not render the arrest unlawful.

The practical implication is that roadside breath tests and arrests based on failed results remain valid absent specific knowledge or reasonable suspicion of recent drinking within twenty minutes. The decision does not establish new legal precedent but affirms existing jurisprudence distinguishing the requirements for roadside testing from those at the garda station.