20 min observation period - breath test ONLY?

Plek Trum

Hi,

Can anyone please confirm if the 20 minute observation period when suspected of drink driving is required prior to using the in station breathalyser machine ONLY

OR
if it is required prior to only a blood / urine sample being taken?

I cannot seem to find a definitive answer and have heard conflicting opinion from a gardai and a solicitor friend.

Thank you.

Really Interested

Plek Trum wrote: »

Hi,

Can anyone please confirm if the 20 minute observation period when suspected of drink driving is required prior to using the in station breathalyser machine ONLY

OR
if it is required prior to only a blood / urine sample being taken?

I cannot seem to find a definitive answer and have heard conflicting opinion from a gardai and a solicitor friend.

Thank you.

There is no statutory requirement to observe for nill by mouth for any test.

In saying that there is a policy in breath samples at the station to observe for 20 mins and this was held lawful because of a requirement by the old machine manufacturer Lion in Wales.

The machine was changed to a new machine if I remember made in Sweden that does not require the 20 mins but a High Court decision said it was lawful for AGS to still observe for nill by mouth.

GM228

Really Interested wrote: »

Plek Trum wrote: »

Hi,

Can anyone please confirm if the 20 minute observation period when suspected of drink driving is required prior to using the in station  breathalyser machine ONLY

OR
if it is required prior to only a  blood / urine sample being taken?

I cannot seem to find a definitive answer and have heard conflicting opinion from a gardai and a solicitor friend.

Thank you.

There is no statutory requirement to observe for nill by mouth for any test.

In saying that there is a policy in breath samples at the station to observe for 20 mins and this was held lawful because of a requirement by the old machine manufacturer Lion in Wales.

The machine was changed to a new machine if I remember made in Sweden that does not require the 20 mins but a High Court decision said it was lawful for AGS to still observe for nill by mouth.

It applies to breath samples only.

The 20 minute wait arose due to the requirement to mitigate any fresh alcohol in the mouth interfering with an accurate test result as per guidlines from the Medical Bureau of Road Safety based on the manufacturer guidlines of the original  EC/IR and Intoxilyzr 6000 machines made by Intoximeter and Lion respectively.

It was held lawful by the Supreme Court in two important cases, DPP vs Finn [2003] 1 IR373 and DPP vs McNiece [2003] 2 IR674 under the principles of the "reasonable necessity" for delay test first recognised in 1930.

The new Evidenzer IRL machines by Nanoplus AB don't have such a guidline in relation to the 20 minutes, but  the 20 minutes are still observed to ensure an accurate test and this was referred to the High Court last year in DPP vs Stack & anor [2016] IEHC 159. It was held that the 20 minute wait was still lawful as the 20 minute wait is still recommended by the Medical Bureau of Road Safety who are responsible for the machines.

Plek Trum

GM228 wrote: »

It applies to breath samples only.

The 20 minute wait arose due to the requirement to mitigate any fresh alcohol in the mouth interfering with an accurate test result as per guidlines from the Medical Bureau of Road Safety based on the manufacturer guidlines of the original  EC/IR and Intoxilyzr 6000 machines made by Intoximeter and Lion respectively.

It was held lawful by the Supreme Court in two important cases, DPP vs Finn [2003] 1 IR373 and DPP vs McNiece [2003] 2 IR674 under the principles of the "reasonable necessity" for delay test first recognised in 1930.

The new Evidenzer IRL machines by Nanoplus AB don't have such a guidline in relation to the 20 minutes, but  the 20 minutes are still observed to ensure an accurate test and this was referred to the High Court last year in DPP vs Stack & anor [2016] IEHC 159. It was held that the 20 minute wait was still lawful as the 20 minute wait is still recommended by the Medical Bureau of Road Safety who are responsible for the machines.

So if there isn't a breathalyser machine in the station, and the only option available is for blood or urine sample, then there is no requirement to be observed for 20 mins?

Would such an observation period, which is not required under law for blood or urine sample, be deemed unlawful detention (or similar)?

Peregrinus

Plek Trum wrote: »

Would such an observation period, which is not required under law for blood or urine sample, be deemed unlawful detention (or similar)?

No. GM228 has already cited the cases which uphold the lawfulness of the practice.

Plek Trum

Peregrinus wrote: »

No. GM228 has already cited the cases which uphold the lawfulness of the practice.

But is that just in relation to the use of breathalyser machines only?

I cant seem to find anything currently that states or approves 20 min observation period prior to blood or urine samples ONLY (eg, where no breathalyser machine was offered / available). Thanks

Really Interested

Plek Trum wrote: »

But is that just in relation to the use of breathalyser machines only?

I cant seem to find anything currently that states or approves 20 min observation period prior to blood or urine samples ONLY (eg, where no breathalyser machine was offered / available). Thanks

It would depend on the facts. Currently the only law on the 20 mins obv relates to breath as the courts have accepted the observation for breath is required.

I have never heard of a person where blood or urine is being requested being observed for nill by mouth.

Really Interested

Peregrinus wrote: »

No. GM228 has already cited the cases which uphold the lawfulness of the practice.

Those cases only relate to breath samples not blood or urine. There is to the best of my knowledge no cases re 20 mins observation for blood or urine.

Little CuChulainn

Plek Trum wrote: »

But is that just in relation to the use of breathalyser machines only?

I cant seem to find anything currently that states or approves 20 min observation period prior to blood or urine samples ONLY (eg, where no breathalyser machine was offered / available). Thanks

It's a bit of a moot point because they have to wait for the doctor anyway. I suppose there could arise a situation where the doctor happens to be in the station already bu even with that, it would take at least twenty minutes for custody procedures and prep anyway.

Peregrinus

Really Interested wrote: »

Those cases only relate to breath samples not blood or urine. There is to the best of my knowledge no cases re 20 mins observation for blood or urine.

Is there a practice of imposing a 20-mimute wait before a blood/urine test?

GM228

As I stated in my post the 20 minute rule is a specific guidline issued by the Medical Bureau of Road Safety specifically in relation to breath samples.

The cases I cited were specifically in relation to breath samples, however the Stack case went further than just dealing with breath samples and basically clarified that any prolonged detention would be lawful by reference to a justified objective reason, the reaon could be that an observation period is necessary in order to comply with manufacturers instructions or otherwise accords with a generally recognised and established practice. This is where Peregrinus is coming from I would imagine, although I'm not sure if there is any practice of a 20 minute wait for blood/urine tests. It applies to breath test for a specific reason which isn't generally applicable to blood/urine tests.

Also worth noting from the Supreme Court in The People vs Walsh [1980] I.R. 294:-

I would be very much disinclined to consider that a delay of 20 minutes simpliciter in dealing with an arrested person is the kind of delay which could be treated as rendering an otherwise lawful custody, unlawful, at least in the absence of some other special circumstances.

Finally I'll point out that generally when arrested on suspicion of drink driving the Gardaí will bring you to the nearest station capable of undertaking a breath sample even if it isn't the local station.

Plek Trum

GM228 wrote: »

As I stated in my post the 20 minute rule is a specific guidline issued by the Medical Bureau of Road Safety specifically in relation to breath samples.

The cases I cited were specifically in relation to breath samples, however the Stack case went further than just dealing with breath samples and basically clarified that any prolonged detention would be lawful by reference to a justified objective reason, the reaon could be that an observation period is necessary in order to comply with manufacturers instructions or otherwise accords with a generally recognised and established practice. This is where Peregrinus is coming from I would imagine, although I'm not sure if there is any practice of a 20 minute wait for blood/urine tests. It applies to breath test for a specific reason which isn't generally applicable to blood/urine tests.

Also worth noting from the Supreme Court in The People vs Walsh [1980] I.R. 294:-




Finally I'll point out that generally when arrested on suspicion of drink driving the Gardaí will bring you to the nearest station capable of undertaking a breath sample even if it isn't the local station.

Thanks for that - in my nephews case however he wasn't. He admitted at the roadside he had been drinking, no road side breathalyser , taken to our local station (rural) No breathalyser machine offered / available there. Observed for 20 minutes, then requested to give blood or urine sample.

Not at all condoning his behaviour, but I am finding conflicting issues the more I read or ask regarding correct procedures. Thanks for your input, much appreciated .

Peregrinus

Well, he couldn't give a blood sample until a doctor turned up, could he? And presumably that would take more than 20 minutes. I don't know what the protocol for urine samples would be.

There might be milage in this, but you'd need to know why the delay happened. Could you establish that the blood/urine sample could have been taken immediately on arrival? Or, at any rate, less than 20 minutes after arrival? If the answer to that question is "no", I think you're on a hiding to nothing. If the answer is "yes", you might have an argument. But you'd have to get around the dictum in Walsh that GM228 has pointed to, and in general to have a look at the cases dealing with how egregious a delay in processing things has to be before detention becomes unlawful.

Plek Trum

Peregrinus wrote: »

Well, he couldn't give a blood sample until a doctor turned up, could he? And presumably that would take more than 20 minutes. I don't know what the protocol for urine samples would be.

There might be milage in this, but you'd need to know why the delay happened. Could you establish that the blood/urine sample could have been taken immediately on arrival? Or, at any rate, less than 20 minutes after arrival? If the answer to that question is "no", I think you're on a hiding to nothing. If the answer is "yes", you might have an argument. But you'd have to get around the dictum in Walsh that GM228 has pointed to, and in general to have a look at the cases dealing with how egregious a delay in processing things has to be before detention becomes unlawful.

Dr wasn't called until after the 20 minute observation period was completed (as far as I am aware). I was curious to find out a definitivev answer as I couldn't find anything solid about it in the legislation. Thanks for all your input.

Little CuChulainn

Plek Trum wrote: »

Dr wasn't called until after the 20 minute observation period was completed (as far as I am aware). I was curious to find out a definitivev answer as I couldn't find anything solid about it in the legislation. Thanks for all your input.

That doesn't sound right. Was there no breath machine or was it not working?

coylemj

The original stipulation for the blood/urine test was that the sample had to be taken within three hours of when the Gardai observed the suspect driving a car.....

29.—Section 49 of the Principal Act is hereby amended by the insertion after “the vehicle” in subsection (1) of “or while there is present in his body a quantity of alcohol such that, within three hours after so driving or attempting to drive, the concentration of alcohol in his blood will exceed a concentration of 125 milligrammes of alcohol per 100 millilitres of blood”.

http://www.irishstatutebook.ie/eli/1968/act/25/section/29/enacted/en/html#sec29

I don't believe there was ever an issue with a delay up to three hours because before the breathalyser machines were installed in Garda stations, the doctor had to be called and in Dublin on a Saturday night, there might be five or six stations waiting for him. In rural areas they might have to call a doctor who lived thirty miles away.

While a 20 minute might be technically necessary in the case of a breath test, in the case of blood or urine it probably doesn't matter because that test involves a doctor and by the time the sample is taken, it's probably at least an hour since the suspect consumed alcohol so the reading will be accurate.

GM228

Plek Trum wrote: »

Dr wasn't called until after the 20 minute observation period was completed (as far as I am aware). I was curious to find out a definitivev answer as I couldn't find anything solid about it in the legislation. Thanks for all your input.

This does sound very odd, it is acceptable that a doctor can be called after being checked into custody, informed of their rights and the custody record has been completed - this is most likely what the delay was rather than a specific 20 minute observation, and it's also acceptable that a delay of 60 minutes can occur from the time a doctor is called to the time they arrive.

hullaballoo

Whatever about having to wait 20 minutes in order for some machine to warm up and be calibrated or whatever, the important part here is not the 20 minutes.

What matters is that while the suspect is in custody and being left alone in a room, that s/he is observed to confirm that nothing has been ingested. The purpose of the "nil by mouth" observation [for whatever period] is so that the accused cannot say that they took a shoulder of voddie into the cell with them and gave it a good lash while plod was doing his paperwork.

Presumably, if there's a delay awaiting a doctor to arrive, the suspect is similarly observed for the duration of the wait if the suspect is being left alone in a cell because otherwise there would be no one on the prosecution side who could gainsay evidence from the accused that they had secreted alcohol on their person and consumed it while in the cell due to the stress of the situation.

Victor

hullaballoo wrote: »

Whatever about having to wait 20 minutes in order for some machine to warm up and be calibrated or whatever, the important part here is not the 20 minutes.

With a breath test, there is also the matter of alcohol being in the mouth / throat / nose(!) from when it was being ingested as opposed to alcohol in the breath from being respirated out.

For blood and urine, the levels of the alcohol in either will vary as it is being processed though the body. If a corrupt garda tested someone 10 hours after detention, then the blood alcohol might be very low compared to 0-3 hours after detention.

I'll leave the niceties to the legals folk, but keeping someone beyond 3 hours is also into 'full' arrest mode, as opposed to detention for the purpose of ascertaining ID or administering an alcohol test or similar.

Plek Trum

.

Peregrinus

What hullaballo said. Whatever the reason for the gap between (a) being stopped while driving, and (b) a test being administered, the subject has to be observed at all times. If he does take drink after driving but before testing, obviously the test results are not showing simply the effect of the drink taken before or while driving.

So, the fact that the subject was observed during a delay before testing does not mean that testing was delayed so that he could be observed. He will be observed regardless of the reason for the delay. This matters because, if the individual wants to challenge the admissibility of the test results on the basis that the test was administered while he was unlawfully detained, the onus is on him to show that the detention was unlawful, which means that he's got to prove that he was detained for an improper purpose. And, even if we assume that detention for observation would be improper, he has to show that he was detained so that he could be observed. This isn't established simply by showing that, while detained, he was observed.

GM228

Peregrinus wrote: »

What hullaballo said.  Whatever the reason for the gap between (a) being stopped while driving, and (b) a test being administered, the subject has to be observed at all times.  If he does take drink after driving but before testing, obviously the test results are not showing simply the effect of the drink taken before or while driving.

I'll also second what hullaballo stated, the Gardaí will observe to mitigate any possible so called "hip flask" defence that may arise by observing the accused whilst detained.

 

Peregrinus wrote: »

So, the fact that the subject was observed during a delay before testing does not mean that testing was delayed so that he could be observed.  He will be observed regardless of the reason for the delay.

Correct, Gardaí will not purposely delay calling for a doctor or the carrying out of any required procedures or create a prolonged detention where there is no requirement/justification to do so. Whilst a short delay without condition generally does not amount to unlawful detention a deliberate delay for no justified reason may be considered an unlawful deprivation of liberty as Gardaí must carry out their duties with reasonable expedition, within a reasonable time frame and without unreasonable delay as per the Walsh case.

Peregrinus wrote: »

This matters because, if the individual wants to challenge the admissibility of the test results on the basis that the test was administered while he was unlawfully detained, the onus is on him to show that the detention was unlawfu, which means that he's got to prove that he was detained for an improper purpose.  And, even if we assume that detention for observation would be improper, he has to show that he was detained so that he could be observed.  This isn't established simply by showing that, while detained, he was observed.

The onus always lies on the prosecution to prove beyond a reasonable doubt that the accused is held lawfully. If the accused raises this they need not prove it, rather the prosecution must rebut it.

Fred Swanson

This post has been deleted.

gooseygander

All heresay talk at the moment. When case first gets to court have solicitor seek a Gary Doyle order, copies of custody record and statements will explain exactly what happened during every minute from arrest to release.

GM228

gooseygander wrote: »

All heresay talk at the moment. When case first gets to court have solicitor seek a Gary Doyle order, copies of custody record and statements will explain exactly what happened during every minute from arrest to release.

You can't get a Gary Doyle order in this case.

barman linen

coylemj wrote: »

While a 20 minute might be technically necessary in the case of a breath test, in the case of blood or urine it probably doesn't matter because that test involves a doctor and by the time the sample is taken, it's probably at least an hour since the suspect consumed alcohol so the reading will be accurate.

I have often wondered about this point - if it takes an hour to take a sample then it is possible that the blood alcohol level is higher than at the time of the incident. If I was borderline on the road but definitely over by the time the sample was taken could I not argue that I was not intoxicated to the level shown in the sample due to metabolism ?

(the level could also go down)

GM228

Fred Swanson wrote: »

Do the Gardaí not search persons arrested on suspicion of drink driving?

There is no power of search for suspected drink driving offences.

Peregrinus

barman linen wrote: »

I have often wondered about this point - if it takes an hour to take a sample then it is possible that the blood alcohol level is higher than at the time of the incident. If I was borderline on the road but definitely over by the time the sample was taken could I not argue that I was not intoxicated to the level shown in the sample due to metabolism ?

(the level could also go down)

Doesn't matter. The offence is driving with drink taken such that, within three hours after driving, your blood alcohol concentration exceeds the permitted limit. It;'s possible that while driving your b.a.c. was below the limit; the offence is still committed.

Really Interested

GM228 wrote: »

You can't get a Gary Doyle order in this case.

Why not? I have seen many such orders given in Ddink Driving cases.

Really Interested

GM228 wrote: »

There is no power of search for suspected drink driving offences.

Why has every custody document I have seen in such cases state the arrested person was searched and lists items taken from the person in custody, remember the person is in custody.

coylemj

Is that so-called 'hip flask' defence still available to suspected drink drivers? I was under the impression that you could not throw up a defence that you took alcohol after the police started processing you for a suspected S.49 offence?

And if the defence is still technically available, isn't there a specific offence of taking alcohol in an attempt to frustrate the taking of an accurate sample such that invoking that defence leaves you open to a different charge which has the same penalties? Heads you lose, tails you lose.

GM228

Really Interested wrote: »

Why not? I have seen many such orders given in Ddink Driving cases.

In the DPP vs Doyle [1994] 2 IR 286 case the Supreme Court held that where indictable offences are prosecuted summarily in the District Court it is necessary to provide the accused with certain material in order to ensure a trial in due course of law - this is what a so called Gary Doyle order is about, drink driving isn't an indictable offence.

GM228

Really Interested wrote: »

Why has every custody document I have seen in such cases state the arrested person was searched and lists items taken from the person in custody, remember the person is in custody.

Perhaps I'm having a brain fart moment but I seem to remember researching this topic and finding there is no provision either in statute or common law to allow for a personal search after arrest and detention for such an offence - unless of course it's a voluntary search. Open to correction of course.

GM228

coylemj wrote: »

Is that so-called 'hip flask' defence still available to suspected drink drivers? I was under the impression that you could not throw up a defence that you took alcohol after the police started processing you for a suspected S.49 offence?

And if the defence is still technically available, isn't there a specific offence of taking alcohol in an attempt to frustrate the taking of an accurate sample such that invoking that defence leaves you open to a different charge which has the same penalties? Heads you lose, tails you lose.

Of course you can raise the defence, chances of success are low unless you have good evidence which the prosecution can't rebut.

By the way such charges no longer come under S.49 or S.50 of the 1961 Act, they come under the 2010 Act.

Victor

barman linen wrote: »

If I was borderline on the road but definitely over by the time the sample was taken could I not argue that I was not intoxicated to the level shown in the sample due to metabolism ?

On a road safety level, this is a very risky behaviour, whatever about the law.

Really Interested

GM228 wrote: »

In the DPP vs Doyle [1994] 2 IR 286 case the Supreme Court held that where indictable offences are prosecuted summarily in the District Court it is necessary to provide the accused with certain material in order to ensure a trial in due course of law - this is what a so called Gary Doyle order is about, drink driving isn't an indictable offence.

In reality Gary DOyle orders are sought and granted in Drink Driving cases every day of the week.

https://www.dppireland.ie/filestore/documents/Chapter_9_Disclosure.htm

Summary Prosecutions

9.6 The scope of the duty of disclosure in summary prosecutions has been defined by the Supreme Court in Director of Public Prosecutions v. Gary Doyle [1994] 2 IR 286. In the light of that judgment the following principles should be observed by the prosecution:

1. there is no general duty on the prosecution in a summary case to furnish in advance the statements of intended witnesses whether or not there is a request for them from the defence. However, if there is some reason arising from the particular circumstances of a case why advance disclosure of the details of the case, whether by furnishing statements or otherwise, is necessary in the interest of justice, this should be done whether or not there is a request;
2. the test to be applied by a court on an application by the defence to be furnished pre-trial with the statements on which the prosecution case will proceed is whether "in the interests of justice on the facts of the particular case" this should be done (Gary Doyle's case, at p.301). The requirements of justice must be considered in relation to the seriousness of the charge and the consequences for the accused. Very minor cases may not require that statements be furnished. Complexity of the case is also a factor. Amongst the matters which the Supreme Court in Gary Doyle identified as possibly relevant to the court's decision were:

"(a) the seriousness of the charge;
(b) the importance of the statements or documents;
(c) the fact that the accused has already been adequately informed of the nature and substance of the accusation;
(d) the likelihood that there is no risk of injustice in failing to furnish the statements or documents in issue to the accused."

GM228

Really Interested wrote: »

In reality Gary DOyle orders are sought and granted in Drink Driving cases every day of the week.

https://www.dppireland.ie/filestore/documents/Chapter_9_Disclosure.htm

Summary Prosecutions

9.6 The scope of the duty of disclosure in summary prosecutions has been defined by the Supreme Court in Director of Public Prosecutions v. Gary Doyle [1994] 2 IR 286. In the light of that judgment the following principles should be observed by the prosecution:

1. there is no general duty on the prosecution in a summary case to furnish in advance the statements of intended witnesses whether or not there is a request for them from the defence. However, if there is some reason arising from the particular circumstances of a case why advance disclosure of the details of the case, whether by furnishing statements or otherwise, is necessary in the interest of justice, this should be done whether or not there is a request;
2. the test to be applied by a court on an application by the defence to be furnished pre-trial with the statements on which the prosecution case will proceed is whether "in the interests of justice on the facts of the particular case" this should be done (Gary Doyle's case, at p.301). The requirements of justice must be considered in relation to the seriousness of the charge and the consequences for the accused. Very minor cases may not require that statements be furnished. Complexity of the case is also a factor. Amongst the matters which the Supreme Court in Gary Doyle identified as possibly relevant to the court's decision were:

"(a) the seriousness of the charge;
(b) the importance of the statements or documents;
(c) the fact that the accused has already been adequately informed of the nature and substance of the accusation;
(d) the likelihood that there is no risk of injustice in failing to furnish the statements or documents in issue to the accused."

Perhaps we need to establish exactly what a Gary Doyle order is, basically a Gary Doyle order requires the provisions of S.4B of the Criminal Procedure Act 1967 to apply to indictable offences which are prosecuted summarily in the District Court, it requires a specific list of items to be furnished by the prosecution in accordance with 4B if granted. This was very specifically in relation to indictable offences.

The High Court has previously specifically stated in DPP vs Clune [1981] ILRM 17 that S.48 does not apply to summary cases in order to allow the case be undertaken with some degree of expedition and informality while remaining in compliance with the principles of justice, as the Doyle case was specific in relation to indictable offences that position hasn't changed and was reaffirmed after the Doyle case by the HC in DPP vs Browne [2008] IEHC 391 - that 4B didn't apply as justice should be dispensed in a simple and speedy manner, and that inordinate expense must be avoided in summary cases.

A Gary Doyle order will allow for disclosure as per the 1967 Act of evidence, information and to enquire if information in relation to evidence exists only in relation to indictable offences tried summarily. Yes orders for disclosure in a summary trial can be sought but they are not a Gary Doyle order as they only apply to material evidence - something which seems to be supported by your quote as it references only statements - and I don't believe a custody record for example would be covered. Also in the case of a summary trial an order for disclosure can't be used to enquire if information in relation to evidence exists as per the High Court in DPP vs Thompkins [2010] IEHC 58 which interestingly was in relation to a drink driving case.

A Gary Doyle order and an order for disclosure in a summary trial are not the same and don't allow for the same information to be disclosed.

Really Interested

GM228 wrote: »

Perhaps we need to establish exactly what a Gary Doyle order is, basically a Gary Doyle order requires the provisions of S.4B of the Criminal Procedure Act 1967 to apply to indictable offences which are prosecuted summarily in the District Court, it requires a specific list of items to be furnished by the prosecution in accordance with 4B if granted. This was very specifically in relation to indictable offences.

The High Court has previously specifically stated in DPP vs Clune [1981] ILRM 17 that S.48 does not apply to summary cases in order to allow the case be undertaken with some degree of expedition and informality while remaining in compliance with the principles of justice, as the Doyle case was specific in relation to indictable offences that position hasn't changed and was reaffirmed after the Doyle case by the HC in DPP vs Browne [2008] IEHC 391 - that 4B didn't apply as justice should be dispensed in a simple and speedy manner, and that inordinate expense must be avoided in summary cases.

A Gary Doyle order will allow for disclosure as per the 1967 Act of evidence, information and to enquire if information in relation to evidence exists only in relation to indictable offences tried summarily. Yes orders for disclosure in a summary trial can be sought but they are not a Gary Doyle order as they only apply to material evidence - something which seems to be supported by your quote as it references only statements - and I don't believe a custody record for example would be covered. Also in the case of a summary trial an order for disclosure can't be used to enquire if information in relation to evidence exists as per the High Court in DPP vs Thompkins [2010] IEHC 58 which interestingly was in relation to a drink driving case.

A Gary Doyle order and an order for discovery in a summary trial are not the same and don't allow for the same information to be disclosed.

A great example of the law in theory and in practice, in practice judges grant a Gary Doyle order which cover anything or any prosecution that the Gary Doyle cases applies to, and if necessary any disclosure that should be presented. Usually given to the defendant in a drink driving case, is copies of any statements, any certificates as set out in the act example doctors cert and Medical Bureau cert, copy custody record, it has also been held to include if necessary and sought maintenance records of breath machine.

GM228

GM228 wrote: »

Perhaps I'm having a brain fart moment but I seem to remember researching this topic and finding there is no provision either in statute or common law to allow for a personal search after arrest and detention for such an offence - unless of course it's a voluntary search. Open to correction of course.

Every arrested person in custody at a Garda station is searched. Possessions are listed in the custody record.

hullaballoo

There is no search. You are simply asked to empty your pockets and then patted down if you consent to it.

Fred Swanson

This post has been deleted.

hullaballoo

hullaballoo wrote: »

There is no search. You are simply asked to empty your pockets and then patted down if you consent to it.

Arrested persons in custody in Garda stations are searched.
For everyone's protection

xavier8228

bubblypop wrote: »

Arrested persons in custody in Garda stations are searched.
For everyone's protection

It falls under the Criminal Justice Act (Treatment of Persons inCustody in Garda Síochána Stations) Regulations 1997 and 2006.

McCrack

Theres quite some misinformation in this thread.

Disclosure (Gary Doyle Orders) is most certainly handed over on the first return date or furnished shortly thereafter.

Persons arrested on suspicion of drink/intoxicant driving are subject to normal custody regulations and that incudes being searched.

GM228

McCrack wrote: »

Theres quite some misinformation in this thread.

I'll agree with that.

McCrack wrote: »

Disclosure (Gary Doyle Orders) is most certainly handed over on the first return date or furnished shortly thereafter.

Really Interested wrote: »

in practice, in practice judges grant a Gary Doyle order which cover anything or any prosecution that the Gary Doyle cases applies to, and if necessary any disclosure that should be presented.

@McCrack - I never said disclosure does not happen in summary cases, I said a so called Gary Doyle Order does not happen.

@Really Interested - the conditions of a Gary Doyle order are not the same as those for disclosure in a summary trial.

A so called Gary Doyle order is a common law order which can't be issued by the District Court for a summary trial unless it's an indictable offence tried summarily, the Supreme Court has clarified this in later cases.

If we want to put a name on disclosure orders for summary trials perhaps we should call them Whelan Orders after the Supreme Court case of Whelan vs Kirby [2005] 2 IR 30 which is the case which allowed for disclosure under the concept of constitutional fair procedures for summary offences, not the Doyle case. In the Whelan case Mr. Justice Geoghegan specifically stated disclosure in a summary case is not the same as a Gary Doyle order although there were "analogous features", worth noting that Mr. Justice Geoghegan is the same judge who delivered the judgement in the DPP vs Doyle [1994] 2 IR 286 case.

xavier8228 wrote: »

bubblypop wrote: »

hullaballoo wrote: »

There is no search. You are simply asked to empty your pockets and then patted down if you consent to it.

Arrested persons in custody in Garda stations are searched.
For everyone's protection

It falls under the Criminal Justice Act (Treatment of Persons inCustody in Garda Síochána Stations) Regulations 1997 and 2006.

The Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 do not afford a power of search on Gardaí, they simply prescribe the conditions to be followed under S17 when a lawful search is conducted.

To clarify Gardaí do not have a specific power of search after an arrest for a suspected drink driving offence.

They only have specific powers of search after detention for certain offences such as an offence under the Offences Against the State Act 1939 or an arrestable offence, however Gardaí do have a common law power of search when detained for any offence which entails a body frisk and examination of the accused's outer garments only, subject to consent from the accused, this common law power originally stems from the Dillon vs O'Brien and Davis (1887) 20 L.R. (Ir.) 300 case.

The courts have clarified that lack of an objection equals consent, so the lawfulness of any search only comes into question if an accused objects to a search. When someone objects a search can only then proceed when the accused is informed of the reason for a search and a statement of the power being used for the search in accordance with the 1987 regulations. If someone objects to such a search and the search continues without invoking a power of search then it is an unlawful search.

The DPP vs McFadden [2003] 2 IR 105 case is an excellent case which highlights how a conviction can be quashed following an unlawful search if there are issues regarding consent. Gerard McFadden was arrested for suspected drink driving and brought to a Garda station where he was subsequently searched. He was found to be "in possession of information of such a nature that it was likely to be useful in the commission by members of an unlawful organisation of a serious offence" and as a result convicted in the Special Criminal Court for an offence under Offences Against the State (Amendment) Act 1998. He successfully appealed his conviction to the Court of Criminal Appeal who quashed the conviction as they found the search following arrest for drink driving was unlawful because he didn't consent to it, but yet the Gardaí then continued the search without invoking a power of search.

barman linen

Victor wrote: »

On a road safety level, this is a very risky behaviour, whatever about the law.

I have no truck with drink driving - but if I neck two pints and leave the pub within 20 minutes the alcohol is most likely still in my stomach so my driving MAY not be impaired. Up to three hours later I would more likely be closer to an illegal level.

I am not advocating any element of drink driving but have always wondered on this - I may not actually be above the limit when I allegedly commit an offence.

Victor

GM228 wrote: »

The courts have clarified that lack of an objection equals consent, so the lawfulness of any search only comes into question if an accused objects to a search.

There goes Felthouse v Bindley.

Such a statement from the courts would appear to be unseemly - there is a distinct power imbalance between garda and arrestee.

Peregrinus

barman linen wrote: »

I have no truck with drink driving - but if I neck two pints and leave the pub within 20 minutes the alcohol is most likely still in my stomach so my driving MAY not be impaired. Up to three hours later I would more likely be closer to an illegal level.

I am not advocating any element of drink driving but have always wondered on this - I may not actually be above the limit when I allegedly commit an offence.

You may not be - there is no way of knowing, since the test is always administered some time after you have stopped driving. How could it be otherwise?

Which is why the offence is framed as it is. The offence is not driving while you have a blood alcohol concentration in excess of a certain limit. It's driving after consuming alcohol to such an extent that, within a period after driving, you have a blood alcohol concentration in excess of a certain limit.

McCrack

GM228 wrote: »

I'll agree with that.







@McCrack - I never said disclosure does not happen in summary cases, I said a so called Gary Doyle Order does not happen.

@Really Interested - the conditions of a Gary Doyle order are not the same as those for disclosure in a summary trial.

A so called Gary Doyle order is a common law order which can't be issued by the District Court for a summary trial unless it's an indictable offence tried summarily, the Supreme Court has clarified this in later cases.

If we want to put a name on disclosure orders for summary trials perhaps we should call them Whelan Orders after the Supreme Court case of Whelan vs Kirby [2005] 2 IR 30 which is the case which allowed for disclosure under the concept of constitutional fair procedures for summary offences, not the Doyle case. In the Whelan case Mr. Justice Geoghegan specifically stated disclosure in a summary case is not the same as a Gary Doyle order although there were "analogous features", worth noting that Mr. Justice Geoghegan is the same judge who delivered the judgement in the DPP vs Doyle [1994] 2 IR 286 case.





The Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 do not afford a power of search on Gardaí, they simply prescribe the conditions to be followed under S17 when a lawful search is conducted.

To clarify Gardaí do not have a specific power of search after an arrest for a suspected drink driving offence.

They only have specific powers of search after detention for certain offences such as an offence under the Offences Against the State Act 1939 or an arrestable offence, however Gardaí do have a common law power of search when detained for any offence which entails a body frisk and examination of the accused's outer garments only, subject to consent from the accused, this common law power originally stems from the Dillon vs O'Brien and Davis (1887) 20 L.R. (Ir.) 300 case.

The courts have clarified that lack of an objection equals consent, so the lawfulness of any search only comes into question if an accused objects to a search. When someone objects a search can only then proceed when the accused is informed of the reason for a search and a statement of the power being used for the search in accordance with the 1987 regulations. If someone objects to such a search and the search continues without invoking a power of search then it is an unlawful search.

The DPP vs McFadden [2003] 2 IR 105 case is an excellent case which highlights how a conviction can be quashed following an unlawful search if there are issues regarding consent. Gerard McFadden was arrested for suspected drink driving and brought to a Garda station where he was subsequently searched. He was found to be "in possession of information of such a nature that it was likely to be useful in the commission by members of an unlawful organisation of a serious offence" and as a result convicted in the Special Criminal Court for an offence under Offences Against the State (Amendment) Act 1998. He successfully appealed his conviction to the Court of Criminal Appeal who quashed the conviction as they found the search following arrest for drink driving was unlawful because he didn't consent to it, but yet the Gardaí then continued the search without invoking a power of search.

You have a textbook understanding of Disclosure in the District Court.

A 'Gary Doyle' Order is a collequal term used the length and breath of the country in the District Courts. If a practitioner asks for a 'Gary Doyle' Order there is no misunderstanding what they are are looking for. They would certainly not get a funny look if they used that term for a matter that was summary only. The fact that you say it is.... "is a common law order which can't be issued by the District Court for a summary trial unless it's an indictable offence tried summarily" is of little or no consequence in practice.

So the correction of an earlier poster that you cannot get a 'Gary Doyle' Order in drink driving cases is technically correct but it is really an academic point and has not in my respectful submission (to use that phraseology) served this thread well.