Irish Judge Overrules Driving Ban And Fine Because It Breaches Constitutional Rights

Irish Independent
30.07.2008
By Tim Healy

Random breath testing hits legal roadblock

A WOMAN’S arrest for drink driving was unlawful because the garda involved only had oral authorisation to set up a checkpoint.

Written approval for gardai to set up any random breath test checkpoint is “an essential feature” of the law, a judge said yesterday.

District Court Judge Brophy also asked the High Court to decide whether he was entitled to convict a woman motorist at the centre of the case.

She was convicted, fined €500 and banned from driving for a year by Judge Brophy.

Unlawful

But yesterday the High Court ruled that, without the written authorisation, the motorist’s arrest was unlawful.

During the District Court hearing, the judge was told that when she was arrested and tested at a garda station, she had a reading of 48 microgrammes (mg) of alcohol per 100 millilitres of breath — which is 13mg over the legal limit for alcohol.

In his judgment yesterday, Mr Justice O’Neill said he was satisfied that in this case that written authorisation was a necessary proof for establishing a checkpoint.

The judge found oral evidence that authorisation had been given to set up such a checkpoint was not sufficient under the 2006 Road Traffic Act — which brought in random breath testing.

Arresting

The Act states that a member of the garda, not below inspector rank, shall provide authorisation for a checkpoint “in writing”.

It must specify the date, place and hours within which it is to be operated.

Without proper authorisation, any subsequent evidence obtained by the arresting garda was in breach of the motorist’s constitutional rights and her arrest was unlawful, the judge said.

It is not yet known how many drink driving convictions could be in jeopardy or affected by yesterday’s High Court ruling.

The Irish Independent has learned that several District Court convictions have been appealed by motorists who have complained that their arrests following random checkpoints were not properly authorised.

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