THE HIGH COURT
		1997 No. 152 S.S.

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857 AND 
IN THE MATTER OF SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961 
BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA ANTHONY O'DRISCOLL)
		APPELLANT
AND
NOEL O'CONNOR
		RESPONDENT

Judgment of Mr. Justice Geoghegan delivered on the 10th day of July, 1998.

	This is an appeal by way of case stated brought by the Director of Public Prosecutions from an order of Judge Mangan, a judge of the District Court dismissing a charge under Section 49 of the Road Traffic Act, 1961 as amended.  The charge in question was for driving a mechanically propelled vehicle in a public place while there was present in the Respondent's body a quantity of alcohol such that within three hours after so driving the concentration of alcohol in his blood exceeded a concentration of 80 milligrammes of alcohol per 100 millilitres of blood.  
	The case stated is less than satisfactory in a number of respects.  First of all, under the usual heading of "the facts proved or admitted" are included alleged facts which not only were not proved or admitted but were actually disproved.  In paragraph 2 and purporting to be part of "the facts proved or admitted" is to be found subparagraph (h) which reads as follows:-

	"At 2.40 a.m. Garda O'Driscoll told the Respondent that in accordance with Section 13(1)(b) of the Road Traffic Act, 1994 he was requiring him to permit Dr. Maloney, a designated doctor, to take from him a specimen of his blood, or, at his option, he would provide a specimen of his urine.  He also informed him that if he failed or refused to comply with the requirement he would be committing an offence and would be liable on summary conviction to a fine not exceeding £1,000 or six months imprisonment or both.  He asked the Respondent if he understood and he said that he did.  The Respondent opted to allow the doctor to take from him a blood specimen".

However, this is not in fact the case because in subparagraph (l) the following appears:-

	"Under cross-examination, Garda O'Driscoll stated that initially the Respondent had opted to provide urine.  This was at approximately 2.40 a.m.  During the next 15 minutes he was unable to do so.  In this regard he was apparently co-operative, but extremely nervous.  Various ploys were used to assist the Respondent to provide a urine sample.  After approximately 15 minutes, the doctor concluded that the Respondent was not going to be able to provide a urine sample and so Garda O'Driscoll told him that he would have to give him blood.  Garda O'Driscoll stated that Dr. Maloney was under pressure to attend another Garda Station at this stage.  It was in those circumstances that the Respondent opted to provide a blood specimen".

It is perfectly clear, therefore, and as I understand it was accepted by the District Judge that notwithstanding what is contained in subparagraph (h) the Respondent did not opt to allow the doctor to take from him a blood specimen but rather opted that the doctor would take a urine specimen.  The fact that all of this only came out in cross-examination probably means that the Garda's memory was jogged at that stage whereas when giving his direct evidence he was working on inaccurate notes.  This is not a factor that I can take into account directly but I cannot rule out that it might have been open to the District Judge to draw that inference.  At any rate, whether such an inference was justified or not, it is perfectly clear that the blood sample was given ultimately only because the Respondent was not able to give a urine sample within the time span permitted.  There is no doubt that under the decision of the Supreme Court in D.P.P. (Coughlan) -v- Swan, 1994 1 I.L.R.M. 314, the statutory obligation is to permit a designated medical practitioner to take a specimen of the blood but the person is given an option of providing a specimen of urine.  If the option is availed of, it relieves the person from the obligation to permit a specimen of his blood to be taken from him.  If, however, the person finds that he cannot provide a specimen of urine, the obligation to permit the taking of the specimen of blood revives and in such circumstances a refusal by him to permit the taking of the blood is an offence.  Blayney J. made clear in his judgment in that case that before the defendant could be convicted of the offence with which he had been charged, the prosecution had to prove that the doctor made a requirement of him in relation to the provision of a specimen of urine and that the defendant failed to comply.  In this particular case, Judge Mangan dismissed the charge for the reasons which he sets out in paragraph 5 and they read as follows:-

	"I was of the view that the Respondent was not given a reasonable opportunity to provide a urine sample.  It therefore followed that the subsequent 'option' for blood was not a proper option.  In this regard I noted that the Respondent had been allowed 22 minutes at the outset.  I was of the view that the Respondent should have been allowed a minimum of 30 minutes within which to provide a urine specimen.  

	In this regard I noted that the prosecuting Garda had very fairly stated, under cross-examination that the doctor had been under pressure and this had been conveyed to the Respondent, and had also agreed that the Respondent had been genuinely agitated by the idea of giving a blood specimen".

The Judge goes on to seek the opinion of the High Court as to whether he was correct in law in dismissing the charge and, in particular, whether he was correct in law in holding that the Respondent had not been given a reasonable opportunity to provide a urine specimen so that his subsequent option to provide a blood specimen was not a proper option.
	The second unsatisfactory feature of the case stated is the reference to 22 minutes which is not explained and which Ms. Egan for the D.P.P. is unable to explain.  Earlier in the case stated, a 15 minute period had been referred to.  If I did not take a particular view of the case which I do, I might feel forced to send back the case stated to the District Judge for clarification, though this would be most unsatisfactory at this remove, as the case was heard as far back as the 8th February, 1996.  But I do not find it necessary because it would seem to me that the decision of the District Judge in all the circumstances did not involve any question of law and that it cannot be said to be perverse.  In these circumstances, I do not consider that the D.P.P. was entitled to bring this appeal.  Section 2 of the Summary Jurisdiction Act, 1857 reads as follows:-

	"After the hearing and determination by a Justice or Justices of the Peace of any information or complaint, which he or they have power to determine in a summary way by any law now in force or hereafter to be made, either party to the proceeding before the said Justice or Justices may, if dissatisfied with the said determination as being erroneous in point of law, apply in writing within three days after the same to the said Justice or Justices, to state and sign a case setting forth the facts and the grounds of such determination, for the opinion thereon of one of the Superior Courts of Law to be named by the party applying......".

I do not think that the District Judge could be said to have fallen into any error "in point of law".  I am quite certain that he was not holding as a matter of law that in every case 30 minutes has to be allowed to provide a urine specimen.  Such a proposition would, in my view, be clearly unstateable and if it had been the intention of the Oireachtas the section would have specified it.  When the District Judge makes the reference to the 30 minutes it is in the context of the other matters which he refers to including above all the pressure which was apparently exerted on the Respondent because of the doctor's other engagements.  The Judge is therefore talking of 30 minutes having regard to all the surrounding circumstances in that particular case.  I could not possibly say that such a view was not open for him to take and still less could I say that such a view was in any way perverse having regard to these surrounding factors and therefore, in my opinion, there is no question of law to be determined by this Court.
	I am well aware of course that the certificate of analysis from the Medical Bureau who inspected the blood sample indicated that the Respondent was very substantially over the limit but it would be quite wrong for me to take this into account.  It is now well established and not disputed by the D.P.P. that the permitting of the exercise of the option to give a urine sample if it can be given is a condition precedent to any absolute obligation to give a blood sample.  The District Judge in this case took the view that in all the surrounding circumstances the Respondent was not given sufficient opportunity to exercise his option to give the urine sample and for the reasons which I have indicated I cannot hold that the District Judge was disentitled to take that view.  I will discuss with Counsel the question of whether in these circumstances the appeal should be dismissed with a "yes" answer or simply struck out.