A Supreme Court decision has highlighted a legal loophole that could have implications for hundreds of drink-driving prosecutions where the new intoxilyzer breath test is used.
The court ruled in the case of a man who had been banned from driving after refusing to take the breath test, there was no justification for a delay of 20 minutes by the Gardaí before the man was breathalysed.
The court ruled that the man was not in lawful detention when required to give the specimens.
Garda guidelines say the delay is necessary to ensure that a suspect does not consume any food or drink which could influence a sample.
The Supreme Court noted that no reason other than the guidelines was given for the 20-minute observation. The guidelines were not produced, nor were any manufacturers recommendations on operating the intoxiliser machine, nor scientific evidence.
In this case the court found the evidence was insufficient to prove the man's detention was lawful. It followed that any evidence subsequently taken was not admissible.
The intoxiliser machine for measuring breath alcohol levels was introduced to garda stations in 2000, replacing blood and urine tests. It is now in use in 60 stations around the country and last year accounted for two thirds or 9,000 samples taken from suspected drink drivers.
Costello calls for Govt action
Labour Party frontbencher Joe Costello has called on the Minister for Justice to outline what steps he intends to take to ensure that the public are not put at risk as a result of the ruling.
In a statement, the Central Dublin TD said that responsibility for the situation rested with the Government for failing to introduce statutory regulations for the treatment of suspects.
