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Drink driving case dismissed as wrong doctor took blood test.

Updated: Apr 20, 2023




A WOMAN WHOSE car crashed and landed on its roof was acquitted of drink driving at Clonmel District Court on 28 March 2023.


Miss H. was later found to have a blood/alcohol level of 305.

The legal limit is 50.


Miss H. “stated at this point
that she had drank
two bottles of wine”.



Garda Kevin Stapleton gave evidence that while on patrol on Dillon Street, Clonmel on 1 May 2022 he observed a grey Nissan Qashqai “turned upside down lying on the centre of the road”.


Garda Stapleton's evidence was fair and reasonable.


There was extensive damage to the vehicle. “The glass windows were shattered in the vehicle”. Two other vehicles parked close by were also damaged.


Garda Stapleton met with Miss H. who informed him that “she was the driver of the grey Nissan Qashqai and collided into two parked cars”.


Garda Stapleton noted that Miss H. had sustained injuries.

“Her legs were cut, and bleeding and she informed me that she had chest pains”.

He noted a strong smell of alcohol from her and her speech was slurred.

Ambulance and fire personnel were at the scene and Miss H. was taken to the ambulance for medical treatment.


Miss H. “stated at this point that she had drank two bottles of wine”.


Miss H. was removed to Tipperary University Hospital in Clonmel for assessment.

Garda Stapleton contacted 24 Doc to ask that a doctor (Note: known in law as the “designated doctor”) attend at the hospital for the purposes of taking a blood sample from Miss H.


Garda Stapleton said: “At 21:55hrs I introduced Miss H. to the on-duty doctor, Doctor Mazer”

“Dr Mazer assessed Miss H. and informed me that she was fit to give a specimen of blood and there was no reason why she could not give a specimen”.


At 22:13hrs the designated doctor, Dr Fahred, arrived at the hospital and Garda Stapleton introduced Miss H to Dr Fahred.


Garda Stapleton made a requirement under section 14 (1) of the Road Traffic Act 2010 that Miss H. would allow the Dr Fahred to take a specimen of blood from her or, if she chose, to provide a specimen of urine instead.

___________________

Note: Section 14 (1) provides that where a person is involved in an accident involving a vehicle and is taken to a hospital a Garda can demand that the person permit the designated doctor (the doctor called by the Gardai) to take from them a specimen of their blood, or if they choose, to provide a specimen of urine.


Before the Garda can make such a demand the Garda must first consult the doctor treating the person. I

f that treating doctor considers that the person’s health would not be adversely affected by providing a specimen of blood or urine, the person must provide such a specimen.


Section 14 (1) places an obligation on the Garda to consult with the doctor actually treating the person -not just any doctor- prior to the taking a specimen of blood or urine in a hospital.


_________________


GARDA STAPLETON WARNED Miss H. that if she failed or refused to comply with his requirement she would be committing an offence. The consequences of committing such an offence were explained.


These included a “a fine not exceeding €5,000 and/or a term of imprisonment not exceeding six months” as well as “a disqualification of not less than four years”.


He noted that Miss H. “opted to permit Dr Fahred to take from her a specimen of her blood”.


The specimen of blood was later forwarded to the Medical Bureau of Road Safety for analysis.


Garda Stapleton said: “On 13 May 2022 I received a certificate of analysis from the Medical Bureau of Road Safety. The result was 305 milligrams of alcohol per 100 millilitres of blood”.








In cross examination Patrick Horan told the court that he had carried out a Freedom of Information Act request with Tipperary University Hospital to establish the identity of the doctor who had treated Miss H. when she had been admitted.


"I have not heard evidence
that a treating doctor
had been consulted”


He indicated to the court that he had received correspondence from the Hospital. This correspondence stated that after a review of “the Patient Management System and discussions with Clinical and Nursing staff within the Emergency Department, it appears Miss H. left the department before being seen by a Doctor”.


“She did not appear to have been treated by any doctor”.


Judge Brian O’ Shea said that the only evidence he had heard was that Miss H. had been seen by an “on-duty doctor”.


He stated that this was not the law.


He said that he was "sure Mr. Horan has seen this point as well, but I have not heard evidence that a treating doctor had been consulted” by Garda Stapleton prior to the requirement for a blood or urine specimen.


Mr. Horan said that this was “precisely the point”. He indicated that he had the High Court Cullen case in court if Judge O' Shea wished to see it.


The State indicated that they had a second witness in court who had witnessed the accident.

However Judge O’ Shea said that this was largely irrelevant given that the specimen of blood had been taken in contravention of the law and no amount of extra witnesses could remedy this problem.


He dismissed the charge.



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