Drunken Driving, Court of Appeal Overturns High Court Decision on Printout from Evidenzer Machine

Article by Eamonn Fleming

In September 2015 Judge Noonan in the High Court found that the failure of the Gardaí to produce the entire form of printout from the Evidenzer machine meant that the printout (English version only) did not comply with the requirement of Road Traffic Regulations, therefore was not evidence and could not be so accepted by the Court. The relevant Sections of the Road Traffic Act in question and the Regulations made under them require that the printout from the Evidenzer machine be in the English and Irish languages.

Effectively Judge Noonan found that only half the prescribed form was printed out (English version only) by the breathalyser machine. This occurred in the case of DPP v Avadenei which was initially heard in the District Court in Dublin on the 2^nd of July 2014.  Judge Noonan ultimately made his decision in the matter on the 21^st of September 2015 after the case was referred to the High Court on this legal point.

As a result a large number of drunken driving cases were struck out by the District Court or by the Circuit Court (on appeal from the District Court). I was successful in having 5 drunken driving cases “quashed” on the basis of this decision. The State, in the meantime, appealed Judge Noonan’s decision to the Court of Appeal.

A number of cases were adjourned however, and no decision made in them until the decision of the Court of Appeal. It really depended on what the attitude of any particular trial Judge was as to whether the Garda prosecutions were struck out or dismissed on foot of Judge Noonan’s decision or whether the trial Judge adjourned hearing the case until the Court of Appeal’s decision.

Immediately after Judge Noonan’s decision in September 2015 the State also “mended its hand” by passing new Regulations which provided that the printout from the Evidenzer machine could be in the Irish OR English and did not require to be in both languages. Obviously such new regulation did not apply retrospectively to prosecutions already before a court.

In the Court of Appeal, on the 10^th of May 2016, Judge Edwards overturned the decision of Judge Noonan holding that pursuant to Section 12 of the Interpretation Act 2005 the “deviation” from a strict interpretation of the Regulations was one of “form rather than substance”.  He effectively held that the form that was printed out by the machine was not “misleading in content or effect”.  It is interesting to note that Judge Noonan in his decision also made reference to Section 12 of the Interpretation Act and he found that that Section was not applicable nor could it give him any assistance in this case since the failure to reproduce “an entire half of a prescribed form, could not be regarded as a mere deviation from the form prescribed”.

It is difficult to reconcile both decisions. In a drunken driving prosecution the stakes weigh heavily in favour of the Gardaí almost to the extent of a box ticking exercise.  It seems to me that it is unfair on the accused driver that the State/Gardaí can rely on the “wrong” form and still get a conviction. This has very serious consequences for the convicted person given that mandatory disqualifications from driving apply in most such convictions (up to 6 years in certain circumstances).