Updated: May 12, 2022
First things first, there’s no such thing as a “drink driving technicality”
There are no “loopholes” either.
These don’t exist, except in the minds of the media.
Words like “technicalities” and “loopholes” are clickbait.
There’s just the law.
It's not very exciting, hence words like "technicalities" and "loopholes".
If legal requirements have not been followed
and the Judge strikes the case out, this is not a technicality.
Its not a loophole either.
Either the law is followed and correct procedures have been adopted or they haven’t.
If they have and the Gardai make out their case properly and no reasonable doubt exists in the Judge’s mind, the court will likely convict.
If they haven’t, the court may acquit.
It really is that simple.
But if the legal requirements on the Gardai have not been followed and the Judge strikes the case out, this is not a technicality.
Its not a loophole either.
It is simply a situation where the law has not been followed.
Some elements are regarded as being “essential proofs” i.e. things that the Gardai must be able to prove.
Such as, that you drove your car in a public place at a specific time and that within 3 hours of this specific time you were over the limit.
That seems straightforward from the State’s point of view, but it’s not always that simple.
A client of mine drove their car into a telephone poll in a built-up area of a large town in the Midlands.
They had been drinking.
The car was written off.
The Gardai arrived at 4a.m. and my client was standing outside his car.
There were no witnesses to the accident.
He admitted that he had been the driver when the accident happened.
He was breathalysed at the scene and he failed.
The Garda arrested him and brought him to the station.
He gave a sample of blood and was later found to be 2.5 times over the limit.
The sample was provided at 6a.m.
On the face of it the case looked quite difficult from a defence point of view.
He was over the limit when he drove his car into a telephone poll.
He admitted that he was the driver.
The sample of blood was taken at 6a.m. which was 2 hours after the Gardai had arrived, so, on the face of it, within the 3-hour time limit.
But the prosecution was dismissed.
The Gardai were easily able to prove some things: that an accident involving a car had taken place in public.
They knew who the driver was because my client admitted driving.
They took a sample of blood in the station at 6a.m. and my client was more than twice the legal limit.
But there was something they couldn’t prove.
They couldn’t prove what time the accident happened, what time my client had been driving.
And this was an essential proof.
By now some of you are thinking “but didn’t the Garda arrive at 4am and wasn’t the sample taken at 6am? Isn’t this within the 3-hour time limit?”
The Garda had arrived at 4am and the sample was taken at 6am.
But the law doesn’t require the Garda to prove what time they arrived at the scene.
It requires them to prove what time the person had driven.
And they couldn’t.
While the Garda had arrived at 4am, this only meant that this was the time they arrived.
The accident might have happened 2 hours before that.
But isn’t that implausible especially in a large town?
But as the Judge said “this is a criminal trial. The standard of proof is beyond reasonable doubt”.
They needed to be able to prove what time my client had been driving at.
And there were no witnesses to the accident.
The Judge offered a simple solution to the State’s predicament.
“Why didn’t the Guard just ask the Defendant what time he had been driving at?”
My client was acquitted.
But this wasn’t a technicality.
It was just a realisation that an essential element of the prosecution case was missing.
The ability to prove a “time of driving” didn’t exist.
And without that, the Court felt that it was unsafe to convict.