The Gazette 1990

GAZETTE

SEPTEMBER 1990

of the age, height, build, and state of health of the applicant would eliminate alcohol at a rate between 10mg - 25mg/100 mis each hour, the likely rate in that case being 15mg/100ml per hour. This was so even though he had vomited before the specimen taken. He had his blood sample taken four hours 20 minutes after the fatal accident he was involved in. It had a result of 59mg/100 mis. The prosecution sought to show the level must have in the region of 120 - 130mgs/100 mis. They also argued that even if the elimination rate was as low as 6 mgs/100 mis per hour, which was unheard of, the appellant's blood-alcohol level would have been in excess of the limit at the time of the impact. The appellant was convicted and the matter went all the way to the House of Lords where the conviction was upheld. It would seem that the normal add back factor would be 15 mgs/100ml per hour in blood samples. Thus under the present Law in Ireland a driver who has his level at 90mg/100 ml two hours after anaccident is likely to be convicted. It should be remembered that the add back will have to be proved beyond reasonable doubt and the burden of that proof may not always be easy. 6. Warning In the Gumbley case the following advice was issued by the Divisional Court ([1987] 3 All ER 733, per Mann J:) which is worth noting. "In our view the prosecution should not seek to rely on evidence of back-calculation save where that evidence is easily understood and clearly persuasive of the presence of excess alcohol at the time when an accused person was driving. Moreover, justices must be very careful especially where there is conflicting evidence not to convict unless on the scientific and other evidence which they find it safe to rely on they are sure an excess of alcohol was in the defendant's body when he was actually driving as charged".

"always had been admissible at Common Law". Therefore evidence from experts regard- ing back calculation would appear to be clearly admissible in Irish Law. The qualification and experience of the expert should be questioned, as obviously difficult questions of an individual's metabolism, food intake etc., would have to be examined. There is possibly one other question that should be addressed - what if the specimen is taken more than three hours after the alleged incident (e.g. accident). It would seem on principle that there is no reason to exclude expert evidence on the three houre basis. It should be remembered that the old "incapacity test" provision still exists. That is the test of "proper control" - see Ss. 49(1) and S. 50(1) of the 1961 Act (as substituted by S. 10 and S. 11 of the 1978 Act). In proper circumstances a Court could allow the add back to be done as probably corroborative evidence that the driver had not the capacity for proper control of the vehicle. The actus reus in this type of case is driving without proper control; in the other type it is driving over the limit. In neither case it appears is there any prohibition on evi- dence by the prosecutor show- ing beyond reasonable doubt . . it appears [that there is no] prohibition on evidence by the prosecutor showing beyond reasonable doubt that the alcohol level at the time of the offence was more than the specimen." that the alcohol level at the time of the offence was more than the specimen. 5. What is the "Add Back"? The human body eliminated alcohol from itself by natural process and therefore the test results will vary depending on the time factors involved. The scientific evidence produced in Gumbley -v- Cunningham [1989] 1 All ER 5 was to the effect that a male

(ii) By providing in Subsection (4) if on the hearing of a charge under S. 49 or S. 50 a Court is satisfied that any action taken by the defendant, including the taking of alcohol, was with the intention of frustrating the prosecution that Court can convict him of an offence under (i) above and also of the main offence under Sections 49 or 50. There is a further hazard for the hip flask drinker in that he is more likely to fail a breath test and so be arrested i.e. give evidence to ground a lawful arrest - Hobbs -v- Hurley (H.C. 10/6/1980) and D.P.P. -v- Donoghue [1987] I.L.R.M. 129) or indeed this very conduct of the defendant may give the Garda suffi- cient ground of reasonable suspicion - D.P.P. -v- O'Connor [1984] I.L.R.M. 333. The above analysis shows that there is definite- ly in the contemplation of the Legislation time factors (i) to enable the prosecution to succeed within three hours where limit exceeded (ii) to prevent the defence succeeding by "Deduction back" factors in certain circumstances. 4. The Main Questions What then of the driver arrested within the three hours but with a result of less than the prescribed limit? Can the prosecution "Add back" to the time of the alleged offence the alcohol eliminated or likely to have been eliminated? Again the tentative answer would appear to be "yes". The background decisions of drunk driving offences allowed for the introduction of "Opinion" evidence in such cases. The main Irish case was The State (Ruddy) -v- Kenny (1960) 94 I.L.T.R. 185 which held a Garda or ordinary person could give evidence that in his opinion that defendant was unfit to drive. In the Richards case (supra) Lawton J. commented in relation to Back Calculation that evidence of this kind

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