A DRINK DRIVING CASE WAS dismissed after the court found that the Garda had been told to leave the property before arresting a woman. The court accepted that while the Garda was entitled to be on the woman's property they had failed to inform her of the legal authority that permitted them to arrest her there.
The case came before Judge John King at Mallow District Court on 29 November 2023. Ms NM was represented by Patrick Horan and Alan O’ Dwyer B.L.
Garda McCarthy gave evidence that on 12 December 2020 he was on patrol at Whitegate Village, Cork. He said that at 23:30hrs he “observed a mechanically propelled vehicle driving erratically in a public place”.
He said that he “formed the opinion that the driver may have been under the influence of an intoxicant.”
He drove after the vehicle and stopped it at a place known as Mosestown, Whitegate. He got out and spoke to the driver, Ms NM.
[Judge King] said that Garda McCarthy had not
“invoked the statutory authority” under section 7
as was required...
The “implied authority [to be on private property]
had been withdrawn”.
Garda McCarthy noted a “strong smell of intoxicating liquor from Ms NM’s breath” and that her “eyes were bloodshot”. He said that he “formed the opinion that she had consumed and intoxicant and was now requiring a breath test”.
Ms NM failed the breath test.
He said that “formed the opinion that Ms NM had committed an offence” and arrested her on suspicion of drink driving “at 23:45hrs”.
After having cautioned her Garda McCarthy said that Ms NM replied: “I’m guilty, just charge me. Don’t arrest me”.
Ms NM was conveyed to Midleton Garda Station and a later blood specimen was taken. Ms NM’s blood alcohol reading was 141. The legal limit is 50.
Garda McCarthy confirmed that he had stopped Ms NM in front of her house. He felt that she “may have been intoxicated”. He said that he breathalysed her before arresting her.
NOTE: Section 7 the Road Traffic Act 2010 allows Gardai to enter private property to seek a breath test from a motorist or to arrest them. The law recognises that the Gardai have an “implied right” to enter private property “to see to the enforcement of the law and prevent a breach” (DPP v Forbes ).
Even if a person tells a Garda to leave their private property (i.e. revoking the implied authority), they can still be arrested on suspicion of drink driving. The power under section 7 is confined to requiring a breath specimen or arresting someone. Investigations are not permitted. It does not allow Gardai to “[make] enquiries or [investigate] the possibility that an arrestable offence had occurred” (DPP v O’ Sullivan, ).
However, if a Garda arrests someone on private property they should tell the motorist what legal power they are using to arrest them. “A failure to contemporaneously invoke or communicate the [section 7] power may result in the exclusion of the evidence” (Staunton, ‘Drunken Driving’, 2021, p. 143)
Garda McCarthy was cross examined by Alan O’ Dwyer B.L.
Mr O’ Dwyer suggested that Miss NM had been fully cooperative. Garda McCarthy agreed that she was.
“She was going up a hill?”
Mr O’ Dwyer then spoke about the road that Ms NM had been observed driving on.
“Cars park on that road?”
“[A car driving along that road] would cross the white line [to avoid the parked cars]”.
“Her residence was 500-700 yards up the road?”
“Yes. A very short distance”.
“She was stopped in the driveway [of her home] and you spoke to her?”
Mr O’ Dwyer then said:
“Miss NM said ‘You know where I was. I was in the pub, and you followed me’”.
Garda McCarthy said that he could not recall this.
Mr O’ Dwyer said that Ms NM had first been seen on Main Street in Whitegate.
“She was leaving the pub” he suggested.
Garda McCarthy said that he “formed his opinion [that an offence might have been committed by Ms NM] based on her driving”.
Mr O’ Dwyer suggested that “the manner of her driving meant that she may have consumed an intoxicant?”
Garda McCarthy could not be certain of this.
Mr O’ Dwyer then spoke of events on the driveway. The arrest had taken place during the Covid pandemic.
“You were aware of Mr GC (Miss NM’s partner)?”
“He said that if you are not wearing a mask you should leave the property”.
“I recall something like that”.
“You were asked to leave the property”?
“The only power you used was section 9 and the power of arrest”?
[NOTE: section 9 of the Road Traffic Act 2010 allows Gardai to demand roadside breath tests from motorists they suspect of having consumed alcohol, driving poorly or been involved in an accident]
Video footage from outside Mr GC’s front door was now played.
[Ms NM’s partner, Mr GC, was seen at the front door communicating with Garda McCarthy. The footage did not have audio. The footage showed Mr GC repeatedly pointing towards the road. The footage showed Ms NM being arrested and taken away].
Mr GC now gave evidence.
He stated that he had asked the Gardai to leave his property a few times if they were not wearing masks. He said that he had a serious health issue which put him in a high-risk category.
In cross-examination the State suggested that the video footage did not cover the entirety of the incident. Mr GC agreed with this.
Judge King now spoke.
He suggested to Mr GC that he appeared to be quite angry on the CCTV footage. Mr GC agreed and said that his partner, Ms NM, had calmed him.
“She was the peacemaker” he said.
IN HIS SUBMISSIONS TO THE court Mr O’ Dwyer said that the arrest had taken place on private property. He agreed that the law did allow for this in certain circumstances as the Gardai had an implied right to enter private property.
However, once that implied right was revoked, the Gardai then had to tell the arrested person what power under law they were relying on to arrest them on private property.
He said that Mr GC could clearly be seen asking the Gardai to leave the property. This meant that the implied authority of the Gardai to remain on private property had been revoked.
This now required Garda McCarthy to invoke the power under section 7 of the Road Traffic Act to arrest Ms NM on private property.
This was not done.
Mr O’ Dwyer said that he had suggested to Garda McCarthy that the only powers he relied on were the power to demand a breath specimen and the power of arrest.
“He agreed with me” he said. These were the only powers used. The power under Section 7 was not, and it needed to be, once Mr GC had told Gardai to leave.
Judge King now spoke.
He said that Garda McCarthy had not “invoked the statutory authority” under section 7 as was required. He said that the “implied authority [to be on private property] had been withdrawn”.
He dismissed the prosecution.