Man Escapes Drink Driving Ban on Appeal

Key Essential Proof Reaffirmed Regarding Proof of Driving in Irish Road Traffic Cases

A 37-year-old man has successfully appealed a drink driving conviction at Ennis Circuit Court, highlighting important legal principles regarding the burden of proof in Irish road traffic cases.

The case, heard at Ennis Circuit Court on 20 January, saw Judge Francis Comerford overturn a three-year driving ban that had previously been imposed in the district court.

The defendant, "Mr K", had been fined €200 and banned from driving after an incident on the M18 motorway near Kilbreckan, Ennis on March 31st, 2023.

"There is no proof of my client driving," 

Mr Kerins told Judge Comerford

The Circumstances of the Case

The court heard that Garda PC found Mr K approximately 150 feet away from a crashed Volkswagen Golf on the M18 motorway just after 11:50pm.

The vehicle had collided with a concrete barrier near Junction 12 outside Ennis.

When approached by Garda PC, Mr K was observed to be "unstable on his feet" with "a strong smell of intoxicating liquor from his breath" and "his speech was slurred." 

He was walking with a dog on the hard shoulder of the motorway when discovered.

Garda PC stated that he handcuffed Mr K "for everyone's safety" due to his location on the motorway's hard shoulder.

While Mr K acknowledged ownership of the crashed vehicle and admitted to having been "out drinking with friends," he declined to answer, when asked, if he had been driving the car.

A subsequent alcohol test revealed Mr K had a reading of 221 mg of alcohol per 100ml of urine - more than three times the legal limit of 67 mg per 100ml for experienced drivers.

The Legal Arguments

In the appeal hearing, defence counsel Kenneth Kerins BL, who was instructed by solicitor Patrick Horan, successfully argued that there was insufficient evidence to prove that Mr K had been driving the vehicle.

"There is no proof of my client driving," Mr Kerins told Judge Comerford.

Mr Kerins further expressed "grave concerns" that the court would infer that Mr K was driving over his failure to answer.

"We don't have a witness, we have no identification evidence of the driver, no admissions and only speculation," Mr Kerins told the court.

The Judge's Decision

Judge Comerford, in his ruling, acknowledged that while circumstances were "suggestive" that Mr K was the driver, these factors alone did not constitute proof beyond reasonable doubt.

"Despite the likelihoods, I have to allow the appeal," stated Judge Comerford.

"For a criminal prosecution there needs to be something more than just proximity to the car afterwards."

The judge noted that alternative scenarios could not be ruled out, saying:

"It is a possibility that there were two people in the car at the time of the accident and it is a possibility that the other person was the driver and left the scene in a different direction."

Judge Commerford stated that Mr K could have have been protecting the other person from criminal liability by not divulging their name. This possibility had not been ruled out by the State.

Judge Comerford said that the fact that Mr K was the owner of the vehicle and was found by Gardaí 150 feet away from the car are circumstances that are suggestive that he was the driver of the car.

He then posed the question:

"By themselves do they establish that he was the driver?"

"It is a possibility that there were two people in the car

at the time of the accident and it is a possibility that

the other person was the driver and left the scene

in a different direction"

Critically, Judge Comerford highlighted that Mr K wasn't questioned under Section 107 of the Road Traffic Act, which would have required Mr K, as owner, to disclose the identity of the driver at the time of the accident.

This meant, Judge Commerford said, that he could not infer anything from Mr K's refusal to confirm that he was the driver.

While Judge Comerford stated he had "no difficulty inferring that Mr K was in the car," this alone was insufficient to uphold the conviction.

The appeal was allowed and Mr K’s drink driving conviction was overturned.

This case reaffirmed an important principle regarding the standard of proof required in drink driving cases.

It demonstrated that proximity to a vehicle, even when combined with evidence of intoxication and vehicle ownership, might not be sufficient to secure a conviction without direct evidence of driving.

But most importantly, the case examined the circumstances when a court may - or in this case may not - rely on “inferences” to establish an essential prosecution proof.