HUNDREDS OF DRUG driving prosecutions are in limbo as lawyers and gardaí await a judgment in the High Court.
The Journal has learned that some contested drug driving cases have been adjourned for more than 12 months in multiple district court areas.
It is understood that cases are coming to these courts but, often, only those with defendants who plead guilty reach conclusion and are sentenced. In cases where the defendants have plead not guilty, there are delays before the district court can begin a trial.
The issue has arisen because of a case, DPP v O’Leary, which is currently before the High Court and is expected to return a ruling in the coming months.
The question at the heart of the suit will examine how gardaí conducted roadside drug tests in the past, specifically whether they should have waited for a 10-minute period of observation before taking a sample from a driver.
The manufacturers of the test kits used by road traffic units until December 2022 advised that this period should be taken to ensure no contamination of the saliva sample. The advice was given as a test result could be impacted by the person eating or drinking in the minutes before being stopped, or before the sample was taken after the stop.
The Irish Examiner reported in November 2021 that a case in North Cork in which a man was accused of driving under the influence of cannabis was struck out.
Judge Joanne Carroll dismissed the prosecution because the gardaí had not applied the 10-minute observation period recommended by the test kit’s manufacturers.
The complex legal issue could also impact the way the testing is conducted, especially as the law governing the practice requires the garda to have carried out the test before making an arrest.
In drink driving, gardaí can arrest a person based on their opinion alone, before testing them at the station. In regard to drug driving, there must be a roadside test before they are detained.
Sources have said that gardaí are closely monitoring the potential ramifications of this latest case for road policing, as a significant number of cases are now delayed awaiting word from the High Court.
David Staunton, a barrister who has written a book on prosecuting and defending road traffic legislation cases around drunk driving, told The Journal that, at present, he believes there are hundreds of cases impacted.
“If the court finds that it was a critical prerequisite to the validity of the oral fluid results that 10 minutes is required, well, then that could impact on thousands [of cases],” he said.
While there is nothing in the legislation that specifically mentions a 10-minute procedural observation period, Staunton said that the issue is around the instructions from the manufacturer of the specific tests used by the gardaí.
These instructions outline that a 10-minute observation period is optimum.
“The reason for that is that the instructions say that there are various different, perfectly lawful, components in, say, food or beverages that potentially could interact or interfere with the validity of the test,” he added.
Normally, in drink driving legislation, it is not mandatory for gardaí to carry out a roadside breath test before arrest. That is different in drug driving cases.
Staunton believes that if the judgment of the High Court later this year finds that the taking of the individual sample was invalid then it could have broader issues for the use, by gardaí, of the laws governing drug driving.
Gardaí along with the Road Safety Authority launched new roadside drug-testing kits in December 2022 - the equipment replaced previous models used by road policing officers.
It is not known if these tests also require a 10-minute test however it is understood that some individual road policing units have been advised to conduct the observation period.
The relevant inserted provision is contained in Section 13b of the Road Traffic Act 2010 around the collection of samples.
“Basically, what that says is that in order to test somebody for the concentration of drugs, and for a blood specimen to be taken, and it’s only a blood specimen that was taken in this context, the Garda needs to have done certain things, and one of the things that they need to have done was do an oral fluid test.
“So if for some reason the validity of the oral fluid test was called into question, then that could have a significant impact on many cases that are pending before the court or going to come before the court.
“I think you could comfortably say there are hundreds of cases. I would be aware of certain courts that are adjourning cases,” he explained.
A spokesperson in the Department of Transport referred The Journal to the Garda press office and said that it was not a matter for the department.
A spokesperson for the Road Safety Authority referred our query to the Department of Transport.
A statement has been requested from the Department of Justice and the An Garda Síochána.
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