A JUDGE was wrong to dismiss a drink-driving prosecution on grounds of a garda’s failure to note the temperature and humidity in the room when breath samples were taken from a man via the Lion Intoxilyser machine, the High Court has ruled.
Mr Justice Daniel O’Keeffe yesterday upheld arguments by the DPP that there was no basis for dismissing a drink-driving prosecution because a garda had not made a written note of the temperature and humidity when taking breath samples.
The district judge dismissed the prosecution, arising from the arrest of the man in September 2004, after saying the purpose of recording the temperature and humidity was to install certainty concerning the Intoxilyser results.
Because the temperature and humidity were not recorded, the district judge said he had a doubt on the issue of certainty and dismissed the prosecution.
In his judgment on legal issues referred to the High Court arising from the case, Mr Justice O’Keeffe said there was no legal requirement for the garda operating the Intoxilyser to make a note in his handbook of the temperature and humidity.
Manufacturers’ guidelines on the use of Intoxilysers were not part of the statutory framework for the operation of such an apparatus or its role in the statutory evidential requirements for a prosecution such as this, he added.
The judge noted that after the district judge said he had a doubt due to the failure to record humidity and temperature, counsel for the DPP had applied to be allowed to call a witness to give evidence that test results were not affected by temperature and humidity.
The defence objected to such a witness being called on grounds the prosecution case had closed.
The district judge ruled he had already indicated he had a doubt before the application was made to call further evidence.
