Blood and urine are not on an "equal footing" under law.
A WOMAN ARRESTED for drink driving and who could not provide an adequate amount of urine had her prosecution dismissed at Dublin District Court.
Miss S. was charged with failing or refusing to provide a specimen of urine. If convicted she faced a 4-year disqualification from driving.
When this happens [urine not provided]
the Gardai must inform the arrested person
that they are now being required to provide blood.
She was told she must provide urine.
If blood is required and she opts for urine and fails,
then blood revives.
That didn’t happen here.
The case highlighted the fact that blood or urine specimens are not on an “equal footing” as far as the law was concerned.
If a motorist failed or refused to provide a specimen of urine, the Gardai would now be required to demand a specimen of blood.
It also underlined the importance of the verbal “warnings” that must be given to a motorist prior to providing a specimen of breath, blood or urine.
Miss S. was represented by David Staunton, B.L. and Patrick Horan.
The case came before Judge Alan Mitchell.
GARDA D. STATED THAT on 6 July 2022 he encountered Miss S. driving and had pulled her over. He described her as “having a strong smell of intoxicating liquor and glazed eyes”. She was arrested for drink driving at 11:04pm and brought to the Garda station.
He explained to Miss S. that she would have to give a specimen of blood or urine to the designated doctor in the Garda station.
She said that she had a fear of needles.
She chose to provide urine.
Miss S. subsequently provided a specimen of urine at 00:45am. According to Garda D., the designated doctor “deemed the sample insufficient”.
Another attempt was made but at 00:52am the doctor again deemed the specimen insufficient.
Miss S. was later charged with the offence of failing or refusing to provide a specimen.
In response to questions from Mr. Forde on behalf of the prosecution Garda D. agreed that the penalties for failing or refusing to provide a specimen of urine were clearly explained to Miss S.
He was asked what those penalties were. He said that she was advised that she could face penalties of a €5,000 fine or 6 months imprisonment, or both. He confirmed that a sergeant was also present at this time.
Garda D: I explained the penalties to her after 00:45am when [the doctor] deemed the sample insufficient.
Mr Forde: You cautioned her. What did she say?
GD: She had 2 glasses of wine.
MF: It was an insufficient sample?
GD: Yes [the doctor] deemed the sample insufficient.
MF: Why?
GD: It wasn’t enough even for one jar I believe.
MF: How long was the accused allowed to give a sample?
GD: Initially at 00:24. [The doctor] left at 00:50. It was 26 minutes.
MF: What did she say?
GD: She said she had a medical issue. I can’t recall but she was given the option of providing blood.
MF: What about this?
GD: She said she was afraid of needles.
Garda D. was now cross-examined by Mr David Staunton B.L.
David Staunton: She made an admission of having consumed wine?
Garda D: I formed the opinion that she had consumed intoxicating liquor. I cautioned her and she admitted wine. She said she had two glasses of wine.
DS: When you say that Miss S. was asked to provide a specimen of urine or blood, you were also present when [the sergeant] spoke to her?
GD: Yes.
DS: You agree that [referring to Garda D.’s statement] “at 00:45 hours Miss S. had failed to provide a sample that was deemed sufficient by [the doctor]”
GD: Yes.
Mr Staunton then quoted the sergeant’s statement: “I again explained in simple English the obligation for her to provide a specimen of urine or at her option a specimen of her blood pursuant to section 12 (1) of the Road Traffic Act 2010”.
DS: Do you remember this?
GD: I remember the penalties but not that specifically.
The Medical Bureau of Road Safety provide a kit for Gardai when specimens of blood or urine are taken. The kit includes two cylindrical glass vials, a plastic jug and labels.
People who opt to provide a urine specimen are given a plastic jug and then taken to the toilet where they can provide the specimen.
Once the specimen is provided it is divided into each of the two glass vials. These glass vials are packaged and one or both of them are sent to the Bureau for analysis.
-The Garda said urine and then blood?
-Yes. The legal requirement under the Act is
blood or at your option urine.
In all the circumstances the Defendant must
be given the choice of blood or at their option urine.
DS: It was not sufficient to fill one jar?
GD: Yes.
DS: A person is given a sort of plastic pint jug?
GD: Correct.
DS: She urinated into this?
GD: Yes.
DS: How much was in the jug?
GD: I don’t know.
DS: But you said it wasn’t enough to fill a vial?
GD: I didn’t see what was in it, but I just heard the doctor say it wasn’t enough.
The Medical Bureau of Road Safety publish guidelines as to what a doctor should do (when taking urine specimens). Mr Staunton now read from the Bureau’s guidelines:
DS: One of the things the Bureau says is: “in cases where there is doubt as to the volume of urine provided, analysis can be attempted on specimens of any volume. A greater volume allows for more testing”.
If that’s the position he [the Doctor] hasn’t followed this has he?
GD: That’s right.
DS: She was charged?
GD: Yes.
DS: At what time?
GD: 1:20a.m.
DS: The time of driving was just after 11pm?
GD: Correct.
DS: She was deemed to have failed at 12:45a.m.?
GD: Yes.
Garda M. then gave evidence. She had been present while Ms S. had attempted to give a specimen of urine. She was questioned by Mr Forde on behalf of the State.
She said that having processed Ms S, the doctor arrived at 00:20am. She told Mr Forde that Ms S. “attempted to provide a sample of urine”.
Mr Forde: Did you see what was taken?
Garda M: A very small amount of urine.
MF: How much?
GMc: I don’t know.
Under cross-examination Garda M. agreed that it was the doctor who had decided that the specimen provided was insufficient. She was asked to describe how much urine was in the jug and how much of this was later poured into the vials.
GMc: There was not enough to fill a vial. A half to three-quarters of one vial approximately.
IN HIS SUBMISSIONS TO THE court Mr Staunton said that the “specifics of the alleged offence” were not clear. He focused on the requirement made for a specimen in the Garda station.
DS: She’s led to believe by both Gardai that she had to provide urine, or at her option, blood. This is not the law.
The principle legal basis is blood or at your option, urine. She elected for urine. She did provide urine. That is inconsistent with the [offence that she is charged with]. She’s being told she has to provide urine.
Mr Staunton referred to the case of Brendan Corcoran where the Defendant was told that they had to provide urine.
DS: That is not the law. Even where she did provide a specimen it seems that the sample was deemed insufficient.
Mr Staunton now referred to the High Court case of DPP v Garvey.
DS: The Medical Bureau of Road Safety analyst gave evidence [in that case] that a person [providing a urine specimen] only had to layer the base of the jug.
She did comply by providing a half or possibly three-quarters [of a vial]. That is inconsistent with the instructions by the MBRS to doctors [confirming that analysis can be attempted on specimens of any volume].
Mr Staunton then spoke about the law when a urine specimen had failed.
DS: When this happens, the Gardai must inform the arrested person that they are now being required to provide blood. She was told she must provide urine. If blood is required and she opts for urine and fails, then blood revives. That didn’t happen here. The offence was deemed to have crystalised when urine was not provided.
Mr Forde, on behalf of the State, concurred.
MF: I agree. Blood is the primary requirement.
Judge Mitchell then spoke to Mr Staunton.
Judge Mitchell: The Garda said urine and then blood?
DS: Yes. The legal requirement under the Act is blood or at your option urine. In all the circumstances the Defendant must be given the choice of blood or at their option urine.
Judge Mitchell noted that there were serious consequences for a Defendant if they failed to provide a specimen.
Judge Mitchell: The most serious is that they are disqualified. Miss S. was required to provide a sample of urine, but [we have] no exact level.
There was no opinion from a third party (i.e., doctor) to say that it was insufficient. The wrong demand was made.
The option [given] was not in accordance with the Act. I have a doubt that the proper requirements were met.
Judge Mitchell dismissed the prosecution.
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