Drink-driving conviction overturned as wrong doctor allowed blood sample
Posted on 18th March 2021 at 20:21
No evidence ‘doctor in charge’ who gave permission had any responsibility for driver, court rules
A man’s drink-driving conviction has been reversed by the High Court because a doctor in a hospital who gave permission for his blood sample to be taken while he was being treated for injury after a traffic accident was not his “treating doctor”.
Joseph Cullen, Bayview Grange, Wicklow town, was convicted and banned from driving for three years in February 2020 by a Wicklow District Court judge.
That judge was satisfied the law had been complied with when the blood sample was taken even though there was no evidence that a doctor at St Vincent’s hospital, Dublin, who gave permission for it to be taken, was his treating doctor.
Mr Cullen was involved in a single vehicle accident at Ballykillavane, Co Wicklow, on February 2nd, 2019. Emergency services arrived and while he was receiving treatment in the ambulance, he gave a garda permission to take a breath sample but he failed to do so.
Mr Cullen complained of being in pain and was taken to St Vincent’s. The garda said she cautioned him before he left but he was not arrested.
At the hospital, the garda got the permission of a doctor, who she believed to be the “doctor in charge”, to take a blood sample from him. The garda doctor was called and a sample was taken. It later gave a reading of 203mg of alcohol per 100ml of blood.
He was charged before the District Court with drink-driving.
His lawyers argued he had no case to answer because the relevant provisions of the Road Traffic Act 2010 had not been complied with insofar as there was no evidence that before making the blood test requirement the garda had asked the doctor who was treating him in hospital for permission to do so.
What had been done was the “doctor in charge” had been asked for permission but this was not a “treating doctor” so as to comply with the Act (section 14.4), it was argued. Under cross-examination, the garda was unable to say whether the “doctor in charge” she had spoken to was treating Mr Cullen or had any role in his treatment.
The DPP argued it was sufficient that the garda had consulted with a doctor in charge of something involving the running of a hospital and that it was not feasible to expect her to have consulted with a treating doctor.
The district judge was satisfied the Act had been complied with. After convicting, fining and banning him, Mr Cullen’s lawyers asked that a case be stated to the High Court whether the District Court was correct in its finding.
In a judgment on Thursday, Mr Justice Garrett Simons said the district judge was incorrect.
He said the phrase in the Road Traffic Act relating to “a doctor treating the person”, on its proper interpretation, refers to a doctor who has had some actual involvement in the treatment and care of a patient.
There was no evidence the “doctor in charge” consulted by the garda “had any responsibility whatsoever” for Mr Cullen.
The consequence of this non-compliance with the Act meant the blood specimen was not lawfully obtained and was therefore inadmissible.
The judge, therefore, made an order reversing the conviction.
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