Checkpoint set up unlawfully.
23 February 2023.
A PROSECUTION AGAINST a man accused of drug driving was withdrawn by the State after it was accepted that a checkpoint had been set up unlawfully.
The case demonstrated that if an arrest of a motorist occurs based in part on errors in official documentation, the legality of that arrest may be at issue.
Mandatory Intoxilyser Checkpoints
allow the Gardai to set up checkpoints
at a specific location
at a specific time
on a specific date.
Mr L. was driving through Kerrypike, Cork on 19 September 2021. He came across a Garda checkpoint and stopped. Garda Crowley was in charge of the checkpoint. The checkpoint was a special type of checkpoint, one authorised by an Inspector. These checkpoints are commonly referred to as Mandatory Intoxilyser Checkpoints.
Mandatory Intoxilyser Checkpoints allow members of the Gardai to set up checkpoints at a specific location at a specific time and on a specific date.
These checkpoints give the Gardai far-reaching powers to demand specimens of a person’s oral fluid (saliva) or breath.
This is the case regardless of whether the Garda has any suspicion that the motorist has consumed an illegal substance or excess alcohol or that their driving is impaired.
Because of the new powers given Gardai to demand specimens of saliva or breath, permission to set up the checkpoint must be given (authorised) by a Garda Inspector or above.
The case against Mr L.
Garda Crowley had set up the Mandatory Checkpoint under a written authorisation provided by an Inspector. The authorisation permitted him to set up the checkpoint between 12pm and 1pm on 19 September 2021 at a place known as “Woodlands, Kerrypike, Cork, a public place”.
When he was stopped, Mr L was required by Garda Crowley to provide a specimen of his oral fluid (saliva). Mr L was warned that if he did not provide a specimen of oral fluid, he would be committing an offence. If he was convicted of this offence, he was told, he could be fined €5,000 or face imprisonment for up to 6 months, or both.
Mr L was given an oral fluid collection tip and told to place it inside his mouth. He was told by Garda Crowley how to use it to collect saliva from his mouth. He did so and this was tested by a Drager drug testing device.
It showed a positive reading for cannabis.
Mr L was arrested by Garda Crowley on suspicion of drug driving and taken to Gurranabraher Garda Station.
A doctor was contacted by the Gardai and a specimen of blood was provided by Mr L. It later showed a concentration of cannabis in his blood above the legal limit.
If Mr L was convicted, he would face a mandatory disqualification from driving of 12 months.
Mr L was summoned to court for the offence of drug driving. The case was listed for trial at Cork District Court on 14 February 2023 before Judge Marian O’ Leary.
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BEFORE THE TRIAL COMMENCED Mr L.’s solicitor, Patrick Horan, made a preliminary submission to the court. The State were on notice of the submission.
This approach would help condense issues and the court could then quickly decide whether to embark on a lengthy trial, adjourn for further inquiry or to dismiss the charge.
Mr Horan stated that his client would be raising the defence of having no legal case to answer on the basis that the mandatory checkpoint had been set up unlawfully.
As the checkpoint was not established in accordance with law, the arrest was therefore unlawful, and the subsequent specimen of blood was also unlawfully obtained.
Judge O’ Leary asked what the substance of the submission was.
The case demonstrated that
if an arrest of a motorist occurs
based in part on errors in official documentation,
the legality of that arrest may be at issue.
Mr Horan stated that the authorisation had specified that the checkpoint be set up at a place known as “Woodford, Kerrypike, Cork”. He said that while the road where his client had been stopped was known as “Woodford” on Google Maps, it was not known as such on the Ordinance Survey Ireland maps.
According to the Ordinance Survey Ireland maps, the name of the road that Mr L had been driving on and later stopped, was “the L2779”.
“This road” he said, “was not known as Woodlands, Kerrypike.” He said that the only place known as Woodlands in Kerrypike was a housing estate and it was accepted by all sides that Mr L. had not been driving in or arrested there.
As the Ordinance Survey maps were the official mapping body of the State the court were bound to accept the names it assigned to places as the legally correct name of those places.
The State sought an adjournment of the case for one week to determine whether Mr Horan’s submission was correct. There was no objection by either the defence or the court to this and the case was adjourned to 23 February.
ON 23 FEBRUARY Mr L’s case once again came before Judge O’ Leary.
The State agreed that having conducted their own inquiries, Mr Horan’s submission had been correct.
The State very fairly asked the court to withdraw the prosecution against Mr L. and Judge O’ Leary did so.