The Gazette 1983

GAZETTE

JULY/AUGUST

1983

merely showed that not less than a particular amount of alcohol had been consumed. It certainly gave no indication . of a person's capacity to drive which would vary from person to person with the same level of alcohol. It was also considered that when the Garda formed his unjustified opinion he must also have formed the opinion, even though not stated in evidence, that the applicant had driven when there was an excessive concentration of alcohol in his blood or urine. The first unjustified opinion would encompass this second opinion. This second opinion proved justifiable when the certificate of analysis was produced. Therefore the arrest had been valid though not for the reason given in evidence but for an appurtenant and implied reason that an offence separate from the one of which the arresting Garda formed the opinion, had been committed. It was also felt by Kenny J. that a Garda may form his opinion by relying solely or partly upon the breathalyser. He referred to the decision of Mr. Justice Costéllo in Hobbs v. Hurley (1980 no. 165 SS unreported) which seemed to suggest that the Garda must observe certain matters over and above the breathalyser result to enable him to justifiably form the requisite opinion. Kenny J. would disagree with this suggestion. Held (per Henchy J. and Griffin J.) The positive result of a breathalyser test on its own is not sufficient to justify an arresting Garda in forming an opinion that a driver is under the influence of an intoxicant to such an extent as to be incapable of having proper control of a vehicle but it is sufficient to justify an opinion that his blood alcohol or urine alcohol levels are above the prescribed limits. An arrest will therefore be valid but the defendant must be charged with an offence specific to urine or blood alcohol level and not simply with the offence of incapacity to drive. Held (per Kenny J.) The positive result of a breathalyser test on its own is sufficient to justify an arresting Garda in forming an opinion that a driver is under the influence of an intoxicant to such an extent as to be incapable of having proper control of a vehicle. An arrest will therefore be valid and the defendant may be charged with the simple offence of incapacity to drive or with an offence relating to blood or urine alcohol level. The Director of Public Prosecutions v. Gilmore, 1981 ILRM 102. Brendan Garvan

ensuing two years they became friendly, but the friendship was not of a close personal nature. The parties never contemplated marriage. In 1972 sexual intercourse took place between the parties which resulted in the Petitioner's preg- nancy. The Petitioner was nineteen and the Respondent was twenty-one. Both were living at home. The Petitioner had just commenced a career in the Bank, and the Respondent was in poorly paid employment. The Petitioner was deeply attached to her mother and very dependant on her. When the Petitioner's mother discovered the pregnancy she informed her that she must marry or leave home. At the time the Petitioner's father was suffering from ill health. The Respondent's parents informed him that he had no option other than to marry. The Respondent had to leave home and live with a friend. The two sets of parents met, in the absence of the Petitioner and the Respondent, and decided that a marriage should be arranged. The Petitioner's mother directed her to organise the ceremony with the priest. The Re- spondent took no part in the arrangements. He described himself to the Court as "feeling trapped", he was still in poorly paid employment and had no arrange- ments made for a home in which the parties could live after the marriage. The parties marries in September 1972. Two weeks after the wedding the Petitioner miscarried. The relationship deteriorated thereafter and the parties separated in 1975. The Petitioner sought a Decree of Nullity on the ground of Duress. In reviewing the case law, the court identified two distinct approaches to the law on duress. The more stringent principals as enunciated in Szechter v. Szechter [ 1970] 3 All E.R. Parojcic v. Parojcic [1959] 1A11ER, Griffith v. Griffith [1944] I.R. and Buckland v. Buckland [1967] 2 All E.R., required that the will ofone or both parties should be overborne by threats calculated to produce fear of loss of life, limb or liberty. In two more recent Irish cases that of B v. D June 1973 (unreported High Court) and S v. S November 1978 (unreported High Court). A broader approach was adopted and summarised in the judgment ofFinlay P. where he stated "essentially it seems to me that the freedom of will necessary to enter into a valid contract of marriage is one particularly associated with emotion, and a person in the | emotional bondage of another could not consciously have that freedom of will". In deciding to adopt the broader line of thinking of B v. D and S v. S the court looked to section 13 of the Matrimonial Causes and Marriage law (Ireland) Amendment Act 1870 which provides that the High Court in exercising its

Recent Irish Cases

ROAD TRAFFIC ACT Where a person has been charged with driving while having more than the prescribed amount of alcohol in his urine the arrest by the member of the « Garda Siochana on the basis of a positive result from the breathalyser test will be valid. The defendant in this case stated had been stopped at a check point and when the Garda heard the applicant's replies to routine questions and also smelled his breath he formed the opinion that the applicant had consumed an intoxicant and then gave him a breathalyser test which proved positive. As a result of this the Garda arrested the Defendant without a warrant in that he formed the opinion that the Defendant was driving while under the influence of an intoxicant to such an extent as to be incapable of of having proper control of the vehicle in accordance with section .49 (6) of the 1961 Road Traffic Act as inserted by section 10 of the Road Traffic (Amend- ment) Act 1978. Later at the Garda Station the Defendant gave a sample of his urine and a certificate of analysis later showed the alcohol level to be above the prescribed limit. The applicant was charged with driving while his urine alcohol content was at this level rather than with driving while under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle which is one of the three separate offences laid down in section 49 of the 1961 Act and which was the offence of which the arresting Garda formed the opinion as stated by him in evidence. The applicant was convicted in the District Court and he appealed to the Circuit Court from where the case was stated. The basic question at issue was whether the arrest was valid i.e. whether the Garda could justifiably form the opinion that the Defendant was unfit to drive without observing any defects in his driving or his demeanour and purely on the basis of the breathalyser test. It was held that the opinion formed by the Garda was invalid in the absence of any demonstrable defects in driving or demeanour in that the breathalyser

NULLITY — DURESS The Petitioner and Respondent met one another on holidays in 1970. In the

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