Longford motorist fails to overturn drug driving conviction over challenge on missing the word 'or' in Road Traffic Act

Seán McCárthaigh

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Seán McCárthaigh

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Longford motorist fails to overturn drug driving conviction over challenge on missing the word 'or' in Road Traffic Act

Longford motorist fails to overturn drug driving conviction over challenge on missing the word 'or' in Road Traffic Act

A motorist has failed to overturn a drug driving conviction after the Court of Appeal ruled the omission of the word “or” in a section of the Road Traffic Act did not require gardai to carry out two tests on a suspected drug driver before a blood specimen could be requested. 

The judgement means a motorist, Patrick Clyne (45) of The Hollows, Longford was unsuccessful in his appeal against a conviction imposed by Longford District Court on March 5, 2019 which resulted in a driving ban of 12 months and a fine of €250. 

The matter was referred to the Court of Appeal as a “case stated” by Judge Keenan Johnson when the case was appealed to Longford Circuit Criminal Court. 

Judge Johnson sought clarification on the proper interpretation of a section of the Road Traffic Act which relates to the conditions to be fulfilled before a person arrested on suspicion of drug driving can lawfully be required to provide a specimen of their blood to a designated doctor or nurse. 

Clyne was arrested after he tested positive for cocaine when stopped at a Garda checkpoint at Market Street, Granard, Co Longford on January 29, 2018. 

He was taken to Longford Garda station where he consented to allowing a registered doctor take a blood sample from him which subsequently showed a concentration of 515.2 mg/ml of cocaine in his blood. 

Clyne subsequently appealed his conviction for drug driving on the basis that the arresting Garda had failed to apply the law properly in relation to requiring an accused party to provide a specimen of blood in a Garda station under Section 13 B (1) of the Road Traffic Act 2010. 

Counsel for Clyne, Micheál P O’Higgins SC, claimed the absence of the word “or” after one sub-paragraph in Section 13 should be interpreted as if the word “and” appeared at the end. 

As a consequence, Mr O’Higgins argued an impairment test or an oral fluid test had to be carried out in addition to the preliminary oral test before a blood sample could be taken. 

Counsel said it meant it was not sufficient to conduct only one of the three types of test. 

Mr O’Higgins said there was no provision in drug driving cases, unlike drink driving, to take urine specimens from suspects. 

He claimed blood tests were more invasive and taking a blood sample without lawful justification constituted an assault. 

However, counsel for the DPP, Tom O’Malley BL, claimed such an interpretation was erroneous as the language used in the legislation in terms of grammar and syntax was standard. 

Mr O’Malley pointed out the sentence “an applicant for this post must be fluent in French, German, Italian or Spanish” did not mean someone required fluency in three out of four languages. 

Counsel said the saliva test administered on the roadside was highly reliable and there would be little point in requiring further tests to be performed. 

Outlining the Court of Appeal’s ruling, Ms Justice Úna Ní Raifeartaigh, with Mr Justice George Birmingham and Mr Justice John Edwards, said it found no ambiguity in the relevant legislation. 

Ms Justice Ní Raifeartaigh said the sub-paragraphs were to be read disjunctively in accordance with ordinary English syntax and the customary practice in legislation. 

“In other words, fulfilling any one of the conditions is sufficient,” she added. 

Ms Justice Ní Raifeartaigh said the intention of the Oireachtas in the legislation was manifest by applying the ordinary English rules of syntax and punctuation routinely used in legislation. 

She observed it was not the court’s role to go behind the plain meaning of a statute “to give effect to a different policy choice”.