In considering the requirements of a driver accused of drink driving offences the Supreme Court has decided that the words:
require the person to provide, by exhaling into an apparatus for determining the concentration of alcohol in the breath, 2 specimens of his breath and may indicate the manner in which he is to comply with the requirement”
mean that a person need only, on request by a Garda officer, provide two specimens of his/her breath and need not supply a third.
Furthermore, if he/she does provide three specimens, the third specimen is not available to ground a prosecution for “driving under the influence”.
Essentially, the Breathalyzer machine for measuring the breath of motorists is not the source of the obligation; the statute (s.13 of the Road Traffic Act, 1994) is.
Compliance with the statute discharges the obligation; meeting the needs of the machine (or its limitations) is not the obligation.
The Supreme court was mindful that the issue involved the interpretation of a penal statute. The Interpretation Act 2005 makes provision for the “purposive” interpretation of legislation, but excludes penal statutes. The law leans against the creation of penal provisions where the statute is not clear.
Section 25 of the Non-Fatal Offences Against the Person Act 1997 provides
25.—(1) In any proceedings for an offence alleging the causing of harm or serious harm to a person, the production of a certificate purporting to be signed by a registered medical practitioner and relating to an examination of that person, shall unless the contrary is proved, be evidence of any fact thereby certified without proof of any signature thereon or that any such signature is that of such practitioner.”
The need for precision in a statute is obvious. Sub-section (2) of Section 25 goes on to provide:
(2) In this section “registered medical practitioner” means a person registered in the General Register of Medical Practitioners established under section 26 of the Medical Practitioners Act, 1978.”
The average medical practitioner rarely thinks of himself or herself as “a registered medical practitioner”. Nevertheless, it is submitted, that is exactly the description which the practitioner must append to any certificate produced for the purposes of Section 25.
The issue is not:
b) That the person certifying is a medical practitioner (US surgeons from Texas spring to mind as invalid candidates);
The issue is:
a) Is the person certifying, a medical practitioner?
b) Is that person registered “…in the General Register of Medical Practitioners…”
c) Does the Certificate purport to express each of these elements?
If it does not, it is submitted, the certificate is inadmissible as “evidence of any fact thereby certified”.