Two drink driving cases are dismissed
THE CORRECT procedures have to be followed when processing persons accused of drink driving. That is according to a District Court judge who dismissed two cases before him recently, citing aspects of legal requirements by prosecuting gardai that were not met. Judge Eugene O’Kelly heard two cases at the close of the summer sittings where charges of drink driving were before the court.
In the first, gardai gave evidence in the contested matter that a man was stopped at 1.50am on O’Connell Avenue driving a 05 Peugeot car in an erratic manner, and where it was crossing the white lines.
The car was stopped and it was the opinion of the prosecuting garda that the accused had consumed an intoxicant, having smelled it from his breath.
Evidence continued that a new mouthpiece was attached to the breathalyser, and when a ‘fail’ was registered, the driver was arrested and conveyed to Henry Street.
Details of the arrest and detention were accepted and a 20 minute uninterrupted period of observation was adhered, where nothing was consumed or smoked.
The accused, in his 30s, was told to give two breath samples into the intoxyliser after the set up procedures were adhered to.
However, after an initial failed attempt to give the sample, the accused was shown how to perform the breath test, but again, he failed to register a reading.
An alcohol reading printout from the machine showed that a sample could not be assessed, and the garda told the court that he said to the accused that that was it, and he was returned to the cell area and charged with failing to give a breath sample.
Defence solicitor Adrian Frawley, challenged the validity of the charge and quoted the training manual for the garda used intoxilyser where it stated that the accused must be given two separate opportunities to give the two samples.
Judge O’Kelly agreed, and was satisfied that the accused was not given two separate opportunities and dismissed the case before the court.
In a second contested matter where a man was also accused contrary to Section 49 of the Road Traffic Act, the court heard that at 12.50 on the night in question, gardai had a checkpoint set up on the Island Road and they noticed a car, bound in the direction of St Mary’s Park, take a sudden turn down a slip road near the Absolute Hotel.
A pursuit ensued and that 96 Clare registered vehicle was stopped a short distance later on the Corbally road.
Again, gardai formed the opinion that the accused had consumed an intoxicant having smelled alcohol on his breath.
The accused, again in his 30s, was breathalysed at the scene and having failed the test, was arrested and detained at Henry St garda station. The court heard that the accused provided two samples of breath that revealed a concentration of alcohol that was in excess of the allowable limit.
With two copies printed of the Section 17 statement where the recorded breath analysis figures are shown, the court heard that the garda member signed the receipt and handed it to the accused to be signed.
Again, Adrian Frawley, defence solicitor, challenged the validity of the arrest and charge and asked the court to strike the matter out on two points.
Mr Frawley said that it was not offered in evidence that a new mouthpiece was attached to the breathalyser at the scene, and that as shown in an the appeal of Freeman V the DPP, the accused person was, under correct procedure, to sign the Section 17 statement before the garda member.
Judge Eugene O’Kelly said that while the garda statement did not say whether a new mouthpiece was fitted or not, it was the courts procedure to adopt that the sworn evidence of the garda during the case was to be taken as the primary evidence in the matter.
However, Judge O’Kelly said that as established in the appeal Freeman V The DPP, the State had not addressed the point as to who signed the Section 17 statement first and therefore, the State neglected a “statutory requirement in law”.
Having come into effect in late October 2011, the new drink driving limits have seen an increase in the amounts of detection according to gardai and thus indicating that a sea change towards drink driving is occurring.
Recent figures show that in one- in- four fatal crashes, the driver had consumed alcohol.
