The Director of Public Prosecutions (DPP) is set to appeal a significant High Court decision with potentially adverse implications for thousands of drink-driving prosecutions.
The judgment concerns legal requirements governing the custody of blood and urine specimens taken from suspected drunk drivers up to when they are transferred for analysis.
Because of a break in the chain of custody of a man’s blood specimen taken from a man, Ms Justice Sara Phelan held he was entitled to an order overturning his January 2024 drink driving conviction and two-year driving ban.
Her decision identified an inconsistency in the law, and she said it is for the State to identify how to address that.
RM Block
Acknowledging her judgment, delivered in late July, would likely have implications beyond the man’s case, she said it will not take effect until final orders are made in October.
Once the final orders are made, the DPP has 28 days to appeal, a step it has signalled it will take. Each year the courts deal with up to 7,000 drink-driving prosecutions based on blood/urine specimens.
Legal sources said that if the judgment stands and the law remains unchanged, thousands of cases could be affected and Garda resources will be put under more pressure.
The judgment is already having an impact on pending cases via adjournments and dismissals, one source said.
In the case of the man who brought a High Court challenge to his conviction, after his blood specimen was taken at 00:37 on August 21st, 2022, the doctor who took it halved it into two glass bottles and sealed the bottles in separate containers labelled with the date and the man’s name.
He sealed the containers and handed them to the arresting garda. The doctor completed a certificate, as required under section 15 of the Road Traffic Act 2010, relating to the taking and sealing of the specimen.
The man retained one container and the garda placed the second sealed container in a box with the section 15 form. The garda sealed the box and posted it to the Medical Bureau of Road Safety for analysis. The bureau certified the specimen contained a concentration of 126ml of alcohol per 100ml blood, in excess of the legal limit of 50ml alcohol per 100ml blood, resulting in the man’s prosecution.
During the District Court trial, the garda witness did not provide direct evidence about the whereabouts of this container prior to it being posted or about who had access to it.
The man’s solicitor sought a direction to dismiss the case on grounds of the failure to adduce such evidence, but the District Court refused to dismiss.
The District Court judge relied on a statutory presumption in other sections of the Road Traffic Act to the effect that the section 15 certificate was proof of the facts stated in the certificate unless the contrary was shown.
The High Court’s Ms Justice Phelan ruled the statutory presumption did not extend to covering the chain of custody after the container was sealed.
The Act requires the prosecution to provide evidence about the storage of the specimen from when it was sealed to when it was posted for analysis so as to exclude the possibility of interference with the sample, she held.
The certificate evidence cannot cover the chain of custody in that regard, she held.
She dismissed arguments on behalf of the DPP that, once the container was sealed, this “locked the door” on the specimen. It has long been accepted there is a rule of “strict” interpretation of a penal statute, she said.
There was no presumption that the integrity of the specimen remained intact, so the State could not rely on the presumption, she held.
