From retired judge Mary Kotsonouris, in her recent book ‘Tis All Lies, Your Worship (Tales from the District Court):

‘He got off on a technicality.’ Why do we think that this excuses a badly prepared or presented case? The law is meant to protect us from tyranny, from the false accusation and the trumped-up charge. If it says I am guilty of drunken driving when I have consumed a defined amount of alcohol, within a defined time of driving a motor car, then it is up to the person who accuses me of the offence to prove that it was what I was doing. If he fails to make a connection between the time I was driving and the time the alcohol level was measured, then he has not proved his accusation. All this is written down; it is the law. It is neither advanced science nor legal devilry.

A High Court decision delivered two weeks ago is yet another which reduces the scope for “technicality” defences to drunken driving prosecutions.

Back in January, I wrote about so-called technicality defences and quoted from the leading Irish textbook on drunken driving law by Mark de Blácam SC. He notes, as have many judges, that drunken driving prosecutions have generated an substantial volume of appeals and challenges. Retired judge Mary Kotsonouris wrote recently that the introduction of the breathalyser lead to an explosion in “technicality” defences, demonstrating the lengths people are willing to go to in order to stay on the road. These challenges are likely to continue with each change to the law, despite frequently failing.

de Blácam’s book was quoted in the case referred to above in which the defence hinged on the humidity of the room in which the breathalyser was operated. The guidelines for the machine state that the optimum operating conditions are a room temperature in the range of 15°C to 35°C and a humidity between 30 and 90 per cent. These conditions are not set out in the applicable legislation, but the test report generated by the machine (the section 17 certificate) records the temperature and humidity of the room at the time.

In this case, the room humidity was 26% and the prosecution was dismissed by the trial judge on the basis that the humidity of the room was below 30%. The prosecution stated a case to the High Court (a procedure by which the High Court is asked a series of questions in order to guide other courts and future prosecutions). One element to the case stated concerned the trial judge’s refusal to allow for an adjournment so that the prosecution could present evidence to establish that the low humidity level did not affect the test.

However, this is the key question for drink driving prosecutions:

was the trial judge correct as a matter of law in dismissing the case on the ground that the humidity level was 26%?

Somewhat surprisingly, the Director of Public Prosecutions does not seem (on the basis of the judgment) to have presented evidence as to whether or not a humidity level of 26% would affect the test. Instead, it seems to have relied on the presumption in the law that a section 17 certificate is sufficient evidence that the requirements of the legislation have been complied with.

Mr Justice Nicholas Kearns decided that the trial judge was not correct in dismissing the prosecution.

There is nothing on the face of the Section 17 certificate to suggest that the Intoxilyser was not working on the date in question. There is no requirement in either the legislation or in the regulations that the temperature and humidity be noted, much less that they be requirements for a conviction on the basis of the Section 17 certificate. No evidence was adduced by the accused to question the reliability of the Intoxilyser or the accuracy of the reading of 58 and there was no evidence before the trial court to rebut the presumption that the certificate was accurate.

So, while a temperature or humidity reading on a section 17 certificate which falls outside of the optimum ranges will still raise an eyebrow, evidence will now be required to show that the reading adversely affected the test in order for the defence to succeed.