A landmark court ruling means defendants in drink driving cases must be allowed to inspect the breathalyser machines used to prosecute them.
The State strongly opposed permitting inspection of the Evidenser machines on grounds including that, under commercial agreements with an independent company providing the software, it did not have permission to disclose the software. Permitting inspections would expose the State to “inordinate expense”, it was argued.
Circuit Court Judge Catherine Staines’s judgment permitting inspection of the hardware and software of the machines for the first time here gives defendants a stronger basis to challenge breathalyser evidence and means the accuracy and reliability of the machines may be subject to greater scrutiny.
Noting the “huge public interest” in the successful prosecution of drink drivers, the judge said it was “essential” that the breath testing apparatus withstands forensic scrutiny if so required by an accused. If the machine in this case withstood such scrutiny, that would be relevant to all future cases, she said.
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Her decision, delivered last Friday at Clonmel Circuit Court, permitted inspection of the Evidenser machine for the purpose of a man’s appeal against his July 2023 District Court conviction for driving with excess alcohol.
Represented by barrister David Staunton, the man was charged after an Evidenser machine in Thurles Garda Station recorded his breath alcohol concentration at 66 micrograms per 100 millilitres, three times over the legal limit of 22 micrograms.
Mark Jordan, a consultant forensic engineer who gave evidence and prepared a report for the defence, said a full forensic examination of the machine was necessary to verify its reliability.
The software governing the Evidenser’s operation was not publicly disclosed and accessing it was essential to test the “forensic integrity” of the machines, he said.
The Evidenser applies a 17.5 per cent reduction to a suspect’s breath test results as a safety margin but a similar reduction was not applied to calibration and control tests performed on the machine, raising issues about the reliability of the results, he submitted.
The calibration check in the defendant’s case showed a reading 11.1 per cent lower than expected. That error, while within acceptable limits, indicated potential issues with the machine’s accuracy, Mr Jordan said.
The judge noted Mr Jordan had pointed to significant “real-world” examples where technology had been compromised or failed, including in relation to electronic voting machines; the Volkswagen emissions scandal, where software was reprogrammed to show false readings; and Boeing planes reprogramming software to override certain safety features on their planes.
The State opposed inspection on several grounds, including relevancy, and said its agreement with the machine’s supplier precluded sharing software information due to commercial sensitivity.
Having considered the evidence and applicable law, Judge Staines said she would permit inspection on grounds including fair procedures.
A person accused of drink driving must be free to contest breath test results in the same way they can challenge blood or urine analyses, she held.
A 2016 Supreme Court decision, Oates v Browne, established, because breath specimens cannot be retained for independent testing, defendants must have the right to inspect the machine that analysed their breath, she said. If no inspection was permitted, it would be “impossible” to rebut the presumption that a printout from the machine was sufficient proof of its contents.
The EU Disclosure Directive 2012/13 entitles defendants to access all material evidence, she further held.
The Medical Bureau of Road Safety (MBRS) must, where the law requires it, ensure the information can be made available, she said. When negotiating a contract, the Bureau could require that access to software be made available to a defendant’s engineer with strict conditions requiring a prohibition on the use of that information by that engineer, she said.
