The Late-Night Stop and the Unrecorded Caution
At 02:10, Sergeant Byrne is called to a filling station where Garda Nally has stopped a car. Nally says the driver, Mr. Keane, failed a roadside breath test (reading 'FAIL') and was arrested under section 4 of the Road Traffic Act. In the patrol car, Nally cautioned Keane and, on the way to the station, Keane said: 'I only had two pints after the match, I know I'm over.' Nally did not note the time of the caution or the exact words. At the station, the Intoxilyzer printout is time-stamped 02:55, but the custody record shows Keane arrived at 02:25. Nally says the delay was because the station's evidential machine was occupied. Keane's solicitor now argues the statement should be excluded and the breath evidence is unreliable.
1. Assess the admissibility of Keane's roadside statement. What must you establish and what will you do about the gap in Nally's notes?
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Framework: A statement made after caution is admissible if it was voluntary and not obtained by oppression or inducement. The caution's timing and exact wording matter for fairness, not for a technical exclusion rule.
Analysis:
- The statement is a spontaneous admission made after a valid caution. Voluntariness is the key issue, and there is no suggestion of inducement or oppression.
- The evidential weakness is Nally's failure to record the time and exact words. That undermines reliability and the ability to challenge it.
- Under fair procedures, the garda should have contemporaneous notes. Sergeant Byrne should: (1) have Nally make a full statement now, clearly marking the reconstruction as such; (2) check the patrol car's CAD/AVL log and station CCTV to fix times; (3) note the discrepancy openly rather than paper over it.
Conclusion: The statement is likely admissible but its weight is reduced. The sergeant's duty is to preserve integrity of the record, not to suppress the problem. Flag the recording failure for supervisory follow-up.
2. The 30-minute gap between arrival (02:25) and the evidential test (02:55) is challenged. How do you assess whether this affects the prosecution?
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Legal position: Section 4/5 Road Traffic Act evidential breath testing requires the specimen to be taken as soon as practicable. Delay is not automatically fatal, but it invites challenge on whether the reading reflects the alcohol level at the time of driving.
Analysis:
- Alcohol metabolises at roughly 15 mg/100ml per hour (average). A 30-minute delay means the later reading is generally lower than at the time of driving, which favours the prosecution, not the defence.
- The explanation (machine occupied) is a legitimate operational reason. The sergeant should confirm it from the station's machine log and any other prisoner's custody record.
- The critical safeguard is the 20-minute observation period before the evidential test and the machine's calibration certificate.
Conclusion: The delay alone is unlikely to defeat the prosecution. Byrne should document the machine-occupancy reason, confirm the observation period was complied with, and ensure the calibration record is available. If the observation period was breached, the reading's reliability is genuinely in doubt and legal advice should be sought before charging.