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Sunday 11 December 2016

Breath alcohol test statement not valid if it is in English only, judge rules

A breath alcohol test statement is not a valid piece of evidence if it is in English only, a High Court judge has ruled.
A breath alcohol test statement is not a valid piece of evidence if it is in English only, a High Court judge has ruled.

A breath alcohol test statement is not a valid piece of evidence if it is in English only, a High Court judge has ruled.

Mr Justice Seamus Noonan said today that a statement produced after a test had been performed by gardaí, who had arrested Mihai Avadenei (29) for a drink driving offence, had not been printed in Irish.

The judge said that under the Road Traffic Act 2010, Avadenei, with an address at Lioscianan, Swords, Co Dublin, could face up to six months in jail and/or a €5,000 fine for the offence.

Judge Noonan said that in April last year, a first breath test had been  performed on Mr Avadenei after he had been stopped by Garda Francis McMahon for driving at 80 kph in a 50 kph zone.

The judge said in a written judgment that Garda McMahon had felt a strong smell of alcohol from Mr Avadenei’s breath and had performed an Alcotest which result had been “fail.”

Garda McMahon had arrested Avadenei and had brought him to Store Street Garda Station, where a further test, Evidenzer Irl, performed by another Garda, revealed a concentration of 54 micrograms of alcohol per 100 millilitres of breath. 

In July last year, during District Court proceedings brought by the DPP, Avadenei’s legal team had argued that the statement produced following the Evidenzer test was not valid because it was in English only.

The DPP had stated that it was not required to print the form in two languages, but only that it be reproduced in Irish. District Court Judge Colin Gibbons had ruled that the document had not been “duly completed,” and had asked the High Court for a confirmation of his finding.

Affirming Judge Gibbons’ decision, Judge Noonan today said there was no ambiguity in the Act that when performing the Evidenzer test, the garda must supply statements in Irish and in English.

“Once the breath specimen has been given which indicates a possible contravention, the person providing the specimen shall be supplied immediately by a member of the Garda Síochána with two identical statements in the prescribed form,” the judge said. 

“In my view, what arises in this case, being a failure to reproduce an entire half of the prescribed form, could not be regarded as ‘mere deviation’ from the form prescribed.

“It is not evidence at all and cannot be admitted,” Judge Noonan said.

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