The Gazette 1990

GAZETTE

SEPTEMBER 1990

(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.

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

"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.

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

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.

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".

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