Updated: Feb 4, 2021
Been caught Drink Driving. What will happen?
BY PATRICK HORAN
The man drove slowly towards my patrol car clutching both sides of the steering wheel with great care. It was 5:30a.m. and bright. He was alone.
I recognised him immediately. He had been arrested for drink driving earlier that night. As our cars passed one another we both slowed to a stop and wound down our windows, like two friends meeting one another on a quiet country road.
“Are you drunk”? I asked. He thought for a moment before nodding apologetically.
“Yes” he mumbled. “Yes”.
-Drink driving arrest performed by the author in 1999.
IS THIS A DIFFICULT TIME? Yes. Is it stressful? Undoubtedly. Is it hopeless? No.
Firstly, some perspective, as its good to know where the opposition (in this case the Gardai) are coming from.
The prosecution of drink driving offences is a cornerstone of the training that all new recruits at the Garda College in Templemore receive.
Specialist lecturers are brought in to underline to the recruits that this area -over and above some other areas of the criminal law e.g. the Criminal Damage Act, the Public Order Act, the Theft and Fraud Offences Act- is regarded as a high-value target by Garda HQ. Objectively, this is only correct.
When I was a recruit in Templemore (1997-1999) not only was drink driving legislation heavily drilled into us via the medium of the English language, it also formed a core aspect of our Irish language studies.
Irish language study -which was mandatory- tended to have a road traffic focus and there seemed to be genuine alarm among Garda Management that recruits needed to understand the drink driving legislation through Irish in case the doomsday scenario arose one day where a Guard stopped a drunk Irish-speaking motorist but could not arrest him because the Guard did not speak Irish.
This sort of theoretical nonsense was part and parcel of some of the lessons that were taught to us with a sort of alarmist gusto and which are still taught -I am led to believe- to recruits today.
The reason why they are nonsense is that they lack any sort of real-world practicality i.e. they simply do not make sense. The idea that someone such as myself would allow a clearly heavily intoxicated driver to proceed along his merry way down the road merely because I could not communicate with him in Irish was patently absurd, yet it seemed to be a genuine concern of many who framed the education syllabus which we received in the Garda College.
there seemed to be genuine alarm among Garda Management that recruits needed to understand
the drink driving legislation through Irish in case
the doomsday scenario arose one day where a
Guard stopped a drunk Irish-speaking motorist
but could not arrest him because the Guard did
not speak Irish. I’m serious
A similar absurd theory -again which we were relentlessly taught- was that an arrest was not deemed a valid arrest in law unless you placed your hand upon the arrested person’s shoulder as you affected the arrest.
To this day I hear Guards giving evidence before the court of having placed their hands upon the shoulder of the arrested person just prior to arrest. This, despite the fact that it is nowhere written in law that such an action is either required or recommended. How could it be?
In certain circumstances, placing your hand on someone else might reasonably be construed as an assault.
IT’S ALL A STORY.
IT'S LIKELY THAT IF YOU'VE READ this far it’s because the story that’s being told here (the heavy concentration on drink driving by the Garda authorities in Templemore, my experience as a young recruit) interests you, over and above an account of the legal intricacies, statistics and data relative to drink driving.
That’s because I’m telling you a story, or a couple of stories, and that is how humans absorb information. We don’t easily process stale statistical data or obscure legislation because the part of our brain that makes decisions -the heuristics area- processes information much more easily if the information is conveyed to it in the form of a story.
And stories are what we tell ourselves every day. Since the time when humans were drawing paintings inside caves, we’ve been telling one another stories. It’s hardwired into our DNA.
Every day we tell stories to one another and -more importantly- to ourselves, about who we are, about what we believe, about our place in the world, about what others say about us.
A similar absurd theory -which
we were relentlessly taught-
was that an arrest was not
valid unless you placed your
hand upon the arrested
Drink driving is a story too. It’s a story about what happened to you on the day or night or the evening or the morning that you were arrested, about where you were travelling to, about where you had come from, about how well you were driving, about being pulled over by the side of the road by the Gardai, about what the Guard said to you at the roadside.
It’s about what you said to them, about being asked to blow into an apparatus, about being arrested, about feeling shocked, about the conversation you had with that Guard, about the drive back to the Garda station, about being introduced to somebody called the Member-in-Charge, about the strangeness of the place.
It's about feeling a little scared, about being told something about being required to blow into an Intoxilyser machine or that maybe a doctor was being called to attend the station, about being asked to either blow into the Intoxilyser machine twice, or being told that you must provide either a sample of blood or if you like, a specimen of your urine.
It’s about being told that a failure or refusal to provide the sample or specimen is a criminal offence and can lead to a possible jail sentence or fine or both, about being led to a place called the Doctor’s Room.
It's about the strangely antiseptic smell of the place, about the conversation you had with the doctor, about rolling up your sleeve so that the doctor could take the sample of blood with a syringe or maybe being asked to provide a sample of urine into a plastic jug provided to you by the Guard.
It's about watching the sample of blood or urine being placed into two separate glass vials, being packaged into a box that is sealed in your presence, about being led from the doctor’s room to the public office, about being handed your property back by the Member in Charge, about being released from custody.
Do you see what's going on here? Drink driving is a story, but within that story there are multiple other stories which all coalesce to form one story, your story.
Defending a drink driving prosecution in court is all about telling a story too. And the court is interested to know this story.
Yes, the court must apply the law, that’s mandatory, but the court won’t apply law to something that is patently absurd or which doesn’t make sense in any reality.
If the story you are telling -or the story that the prosecution is telling- simply doesn’t make sense in any reality, then that story will likely be discounted by the court.
[It’s] about being led to a place
called the Doctor’s Room, about
the strangely antiseptic smell of
the place, about rolling up your
sleeve so that the doctor could
take the sample of blood
with a syringe
You’ve got a story, a story of what happened when you were arrested.
Write that story out on good old-fashioned paper with a good old-fashioned pen. Recount, from minute one, where you were going that night, what time it was, what you were wearing, an endless procession of detail.
It may well be the case that you had consumed alcohol, but consuming alcohol while driving is not illegal: consuming so much alcohol that you become impaired because of its effects is illegal.
Prepare that story with great depth. Do it right away, right now. With the passage of time, memory fades; we forget things, that’s normal.
So, write it out right now, today. Devote a lot of time to this, include every conceivable comment and event, no matter how minor, and write it down. You wont get it all down in writing on the first occasion, or even the second, but over a couple of days snippets of information will trickle back into your mind, events buried in your subconscious will present themselves.
When they do, drop what you’re doing and write them down or type them as a note in your mobile phone and include them in your written account later on. Keep adding to that account.
Don’t worry about including things that you think might be irrelevant: that’s something for your lawyer to disregard if they choose to but give them the rich texture of what happened that day.
The Judge may ask themselves:
“If this person really was as
intoxicated as the Gardai say
they were, how could their
memory of events be so detailed?”
REMEMBER, THE GARDAI MUST PROVE that you were intoxicated to such an extent that you were incapable of having proper control of a vehicle in a public place.
This is something they must prove to the Judge’s satisfaction beyond a reasonable doubt. This necessarily means that you were drunk, as we conventionally understand that term to mean.
Being drunk usually implies that our memory had become negatively impacted because of drink, that we don’t remember certain things.
But if your account of what happened on the night you were arrested is extremely detailed and textured, that tends to mitigate against the Prosecution’s contention that you were drunk. The Judge may ask themselves: “If this person really was as intoxicated as the Gardai say that they were, how could their memory of events be so detailed?”
BUT A CAUTIONARY TALE: drink driving cases are hard to win, they are. Saying otherwise is both untrue and unfair.
Years of training has made most Guards proficient at drink driving procedures. Additionally, when you’re the defendant against at least 3-4 members of An Garda Siochana in court, it can be an intimidating environment.
Latest statistics in Ireland are that about 66% of all people arrested for drink driving are convicted. But that means 34% are not.
That lucky 34% have succeeded for any one of many reasons e.g. a vital witness had not turned up, a vital piece of evidence has not been brought to court, the prosecution evidence has been poor, or -this is where we are focused on today – the defence evidence has been so good as to render a doubt about the efficacy of the procedure in the Judge’s mind and causing the matter to be struck out.
Everybody has a story, especially people who have been arrested for drink driving. Getting yours right is the foundation stone for your future defence.
So, start writing.
-Patrick Horan, 2020.