A suspected drink driver who refused to provide a blood sample to gardaí “citing a fear of needles” has lost his latest legal challenge under the Road Traffic Act.
Mayo man Andrew McTigue was arrested on suspicion of drink driving on November 9th, 2014 and conveyed to Ballinrobe Garda station.
A lawful requirement was made for Mr McTigue to provide a sample of blood or urine. The garda warned Mr McTigue that failure to comply with the requirement was an offence. He was also warned of the penalties that would apply if he refused to give a sample.
Mr McTigue refused to provide a blood sample “citing a fear of needles”. He opted to provide a urine sample, but was unable to do so.
As a result, he was charged with refusal to provide a specimen under Section 12(3)(a) of 12(4) of the Road Traffic Act 2010.
At Castlebar District Court, Mr McTigue’s lawyers applied for the case to be dismissed because the garda had misstated the proper period of disqualification when he was warning the accused of potential penalties.
The garda had stated that the period was “not exceeding four years” when the potential disqualification period was actually “not less than four years”. Mr McTigue’s lawyers submitted that their client had been incorrectly advised and was not fully informed at to the consequences of any intended actions.
They cited Supreme Court commentary that “in the absence of access to a solicitor, the gardaí themselves were the only source of legal advice”.
In a case stated, Judge Mary Devins asked the High Court whether she was correct to dismiss the charge on the basis that an incorrect warning was given to the accused.
The High Court answered the question in the negative and the Court of Appeal upheld that decision on Tuesday.
In the High Court, Ms Justice Mary Faherty held that Mr McTigue was “afforded the full panoply of his rights” and there was no obligation on an investigating garda to warn the accused of any “consequential disqualification, upon conviction”. A disqualification order is not a penalty but merely a consequence of conviction.
Giving judgment on Tuesday, Mr Justice Patrick McCarthy said the High Court judge was right to answer the question posed in the negative. President of the Court of Appeal Mr Justice George Birmingham and Mr Justice John Edwards said they agreed.
The court heard that the matter will be remitted back to the District Court.