29 March 2023
A MOTORIST WHO HAD admitted to a Garda at a checkpoint that they had recently been drinking in a pub had a drink driving prosecution dismissed.
The case came before Judge Watkins at Dun Laoghaire District Court on 29 March 2023.
Mr D. was stopped at a checkpoint by Garda Harrahill on Brewery Road, Leopardstown on 20 November 2021. Garda Harrahill was carrying out a Mandatory Intoxilyser Checkpoint.
“at least 20 minutes should elapse
between the person’s last drink and
before using the device”.
Garda Harrahill, who’s evidence was very fair, said that she had encountered Mr D driving along Brewery Road, Leopardstown at 00:15am on 20 November.
She said that she made a requirement for a breath specimen from Mr D. “at 00:15 hrs”.
She said that the test showed a “fail” reading at 00:16 hrs.
She arrested Mr D. at 00:19hrs and brought Mr D. to Dun Laoghaire Garda Station, “arriving at 00:40hrs.”
Mr D. was processed in the station and a 20-minute “observation period” began at 00:46hrs. It finished at 01:06hrs.
Mr D. was then brought to the Evidenser machine where he provided two specimens of breath, giving a reading of 75mgs.
The legal limit is 22mgs.
IN CROSS-EXAMINATION Patrick Horan put it to Garda Harrahill that when she had encountered Mr D. he had told her that he had been drinking in a pub.
She agreed that he did tell her this.
Mr Horan said that his instructions were that Mr D. had volunteered this information to her as he approached the checkpoint.
Garda Harrahill agreed with this.
Mr D’s instructions were that he had told Garda Harrahill that he had just left the Millhouse Pub in Kilmacud.
She agreed that he had told her that.
Mr Horan suggested that the distance from the Millhouse Pub to the checkpoint location was “about a 4-5 minute drive”.
Garda Harrahill agreed.
Mr Horan suggested that Garda Harrahill would have had reason to suppose that if Mr D. was coming from the Millhouse Pub, that alcohol might have been consumed within the preceding 20 minutes.
Garda Harrahill agreed that this was possible.
___________
IN HIS SUBMISSIONS TO the court Mr Horan stated that there was no evidence that Mr D. had been granted the 20-minute observation period prior to the breath test being administered.
He stated that the instructions for the Drager Alcometer device (Note: device used at roadside to test for the presence of alcohol in breath) mandated that “at least 20 minutes should elapse between the person’s last drink and before using the device”.
He opened the High Court case of DPP v Marie Quirke [2003] before the court.
He said that the law on this issue was well settled and clear.
“Where the Garda knows or has reason to suppose that alcohol has been consumed in the last twenty minutes, they should wait twenty minutes since the person’s last alcoholic drink before administering the breath test”.
Judge Watkins agreed with Mr Horan’s submission.
She took the view that while Garda Harrahill may not have actually known that alcohol had been consumed in the twenty minutes prior to encountering Mr D, from the facts of the case, one might have had reason to suppose that alcohol had nevertheless been consumed during this period.
The charge before the court was dismissed.