Court dismissal of drink driving challenge has implications for estimated 1,000 cases

By Ann O’Loughlin

A challenge by a Romanian man who argued his drink driving prosecution could not proceed because he was not supplied with a breath alcohol statement in Irish as well as in English has been dismissed by the Supreme Court.

The five judge court’s unanimous judgement has implications for an estimated 1,000 drink driving prosecutions, many of which were on hold pending its decision.

Giving the Supreme Court judgment today Ms Justice Iseult O’Malley stressed the issues to be decided did not relate to any asserted constututional entitlement to an Irish language version of the statement relied upon to prove the breath alcohol level but rather its evidential status.

She found, while the relevant regulations require a single bilingual form, to be provided in two identical versions, Section 12 of the Interpretation Act applied because the deviation from the prescribed form did not materially affect the substance of the form and no right of Mihai Avandei’s was breached.

substance of the document and it was not misleading in content or effect.

A staged image of a breathalyser test

The substance of the form was the information intended to be proved in evidence, all information required under the regulations was present, that information was "in no way misleading, confusing or unfair" and no right of Mr Avadenei’s was violated by the form being admitted into evidence, she said.

Mr Avadenei, of Swords, Co Dublin, was stopped by a Garda when he was doing 80kmh in a 50kmh zone in the early hours of April 21st 2014.

He was breathalysed at Store Street Garda Station but the intoxilyser apparatus printed out the results in English only.

Mr Avadenei, represented by solicitor Michael Staines, later successfully argued in the District Court and the High Court the form was invalid as it was not also printed in Irish and his prosecution was halted.

The case centred on interpretation of Sections 13 and Section of the Road Traffic Act 2010 and whether or not a print-out is a "duly completed" document for use in evidence if it is not printed in both English and Irish.

After the Court of Appeal overturned the High Court ruling following an appeal by the Director of Public Prosecutions, the Supreme Court agreed to hear an appeal by Mr Avadenei against the Court of Appeal judgment.

Giving the Supreme Court judgment, Ms Justice O’Malley said two issues arose.

The first was whether the breath alcohol statement was in the form required by the relevant law - the Road Traffic Act 2010 and the Regulations made in 2011 under that Act.

The Court of Appeal had agreed with the District and High Courts the statement was defective but, unlike the two lower courts, went on to find the defect - the omission of the Irish part - did not materially affect the In those circumstances, the appeal court said Section 12 of the Interpretation Act 2005 could be applied, the statement was not invalidated and was to be considered as complying with the prescribed form.

Ms Justice O’Malley said she agreed with the appeal court’s analysis and finding.

She noted, under the 2010 Act, a "duly completed" breath alcohol statement "shall, until the contrary is shown, be sufficient evidence in any proceeidngs under the Road Traffic Acts 1961 to 2010 of the facts stated in it.."

A "straightforward literal reading" of the regulations indicated the form should have contained the Irish language version, she said.

Notwithstanding that defect, she agreed with the Court of Appeal that Section 12 of the 2005 Act could be applied. The "substance" of the prescribed form is the information intended to be proved in evidence by means of the statutory status accorded to the form, all of the required information was present, no right of Mr Avandei was infringed and the form was admissible in evidence, she ruled.


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