Disqualification in Ireland had threatened to disqualify her in the United Kingdom.
25 October 2023.
A NURSE FROM LIVERPOOL who had been convicted of drunk in charge in 2021 and faced disqualification from driving in the UK, won her appeal before Cavan Circuit Court.
Miss LD had been visiting relatives in Cavan on 25 October 2019. She was arrested sitting in the front seat of her parked car on Henry Street, Bailieboro.
She was charged with drunk in charge and bailed to appear before Virginia District Court on 8 November 2019. Miss LD took legal advice and pleaded guilty. She believed that the disqualification would only apply to the Republic of Ireland.
On 27 July 2021 she received a 3-year disqualification from driving at Virginia District Court.
In January 2022 Miss LD received correspondence from the Driver and Vehicle Licensing Agency in the UK.
The letter was delivered to her home address in Liverpool. It advised her that as she had been disqualified from driving in Ireland, due to the Treaty of Mutuality between Ireland and the United Kingdom, this disqualification was now recognised in the United Kingdom.
The effect of the disqualification on Miss LD (a single mother with no previous convictions) was potentially disastrous. Her job in the NHS required her to have access to a car. Without her car her job was at risk.
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NOTE: The Agreement on the Mutual Recognition of Driving Disqualifications (2015) between the UK and Ireland deals with disqualifications imposed by the national courts of Ireland and the United Kingdom. If you’re banned from driving in the UK that ban will be enforceable in Ireland. And vice versa. Driving bans in Ireland will be recognised in the UK and you will be banned from driving over there too.
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“Where a Garda knows or has reason to suppose that alcohol
has been consumed in the preceding 20 minutes...
the requirement for a preliminary breath specimen
should be delayed until at least 20 minutes"
Miss LD contacted Patrick Horan and he lodged a late application to appeal against the disqualification on her behalf at Cavan District Court on 24 May 2022.
Miss LD had advised her employers of the case, and they were following events in the Irish courts.
The appeal came before Judge Simon McAleese at Cavan Circuit Court on 25 October 2023.
GARDA QUINN GAVE EVIDENCE that at about 00:45am on 26 October 2019 he had come upon a vehicle parked on Henry Street, Bailieboro, Cavan. He was accompanied by Sergeant Owens. He noted that there was “a female in the driver’s seat and a male in the passenger seat”. He said that the male “was drinking from a bottle of Smirnoff vodka”.
He said that he spoke to the woman. He noted that the “keys were in the ignition and the lights were on”. The male was wearing his seat belt.
Garda Quinn said: “I asked her what her intentions were” and Miss LD replied, “it’s difficult to get a taxi cab”. He observed a strong smell of alcohol from Miss LD and that her “eyes were bloodshot”.
He told her that he was requiring her to provide a roadside breath test. Miss LD failed the breath test. Based on the failed breath test as well as Miss LD’s statement, Garda Quinn arrested her for the offence of being drunk in charge of a vehicle. Garda Quinn said that he believed that Miss LD “intended to drive”.
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NOTE: where the Gardai find someone drunk in charge of a car (but not driving) they may arrest them for the offence of being drunk in charge if they believe that the person intended to drive or attempted to drive. If a person is arrested for drunk in charge, the State enjoy a presumption that they intended to drive unless, through evidence, “he or she shows the contrary”.
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She was taken to Bailieboro Garda station. Garda Quinn said that Miss LD had told him that she “was intending to bring the passenger home”.
Miss LD later provided a specimen of urine which showed a reading of 221mgs of alcohol. The legal limit is 67mgs.
IN CROSS EXAMINATION Mr Horan put it to Garda Quinn that in his statement he said that there had been a male “in front seat drinking from a bottle of Smirnoff vodka”.
Garda Quinn agreed.
Mr Horan said that his instructions were that Miss LD consumed some of that vodka. Garda Quinn said that he did not see Miss LD drinking.
Mr Horan referred to Garda Quinn’s evidence where he said that he had “asked her what her intentions were”.
He said that Sergeant Owens statement had said something different.
He said that Sergeant Owens recalled that when they had encountered Miss LD sitting in the car “Garda Quinn asked her what she was doing to which she replied ‘its difficult to get a taxi cab”.
Mr Horan suggested to Garda Quinn that Sergeant Owens’ statement made no mention of Miss LD being asked what her “intentions” were.
He suggested that the keys of the car were in the ignition and that the ignition lights were on.
Garda Quinn agreed.
“But the engine wasn’t on?”
Garda Quinn agreed that the engine was not running.
“she did state that she
had come from the pub”
Mr Horan said that alcohol was being consumed in the car and Garda Quinn agreed that this was the case.
He suggested that the arrest had taken place exactly four years earlier and asked whether Garda Quinn had recalled what the weather conditions were like.
Garda Quinn did not have any note of the weather but he agreed with Mr Horan’s suggestion that it may have been cold.
He put it to Garda Quinn that Miss LD’s instructions were that she had come from a pub, located around the corner. He said that a taxi had been ordered and that her 16-year-old daughter was standing on the street waiting for it. Miss LD had decided to wait in the car, out of the cold while the taxi came.
Garda Quinn did not recall seeing Miss LD’s daughter.
He said that her daughter, now 20, was in court and would give evidence that she was waiting to hail the arriving taxi and that she had spoken to Garda Quinn at the scene.
Mr Horan put it to Garda Quinn that both the publican who had ordered the taxi for Miss LD as well as the taximan who had been on the way to pick her up, were in court to give evidence.
He said that Miss LD would give evidence that she did not intend to drive and was sitting in the car awaiting the taxi. She would also say that she had told the Gardai that she had just left a pub.
Garda Quinn did not recall Miss LD mentioning having been in the pub.
He suggested to Garda Quinn that her admission -that it was “difficult to get a taxicab”- was actually a statement of fact: it was difficult to get a taxi at 12:45am in a small town like Bailieboro.
Garda Quinn agreed.
He said that Miss LD’s daughter would say that she had spoken to Garda Quinn at the scene and advised him that a taxi had been ordered at the moment her mother was being arrested.
Garda Quinn could not recall having spoken to Miss LD’s daughter on the night but accepted that this could have happened. He did not recall anything about a taxi being mentioned.
Mr Horan put it to Garda Quinn that Miss LD would say in evidence that she had been drinking while in the car waiting for the taxi.
Garda Quinn said that he had not seen her drinking.
Mr Horan suggested that because the male was drinking in the front seat Garda Quinn would have ‘reason to suppose’ that alcohol was being consumed in the car.
Garda Quinn agreed.
Mr Horan then produced a document which he handed to Garda Quinn in the witness box. He also gave a copy of the document to Judge McAleese and the Prosecutor, Mr Hayden.
He informed Garda Quinn that the document was an instruction manual for the Drager alcometer roadside breath test device, the device that had been used to obtain a roadside breath test. He directed Garda Quinn to a section marked “Requirements of the Person to be tested”.
“At least 20 minutes should elapse between the person’s last drink and before using the device. Residual alcohol in the mouth can distort the measurement. Aromatic drinks (e.g. fruit juice), mouth sprays containing alcohol, medicines etc can interfere with measurements. Rinsing the mouth with water or non-alcoholic drinks does not reduce this waiting period”.
He asked Garda Quinn whether a waiting period of twenty minutes had been observed prior to the breath test being conducted.
Garda Quinn confirmed that it had not.
Judge McAleese then asked whether the instruction manual of the Drager roadside breath testing device was incorporated into statute. Mr Horan stated that it was not.
SERGEANT OWENS ALSO gave evidence. He said that he had been with Garda Quinn on the night of Miss LD’s arrest. He oversaw the taking of a urine specimen later in the Garda station.
He saw a male in the front seat drinking. This male had his seatbelt on. He recalled someone may have come to the scene but could not remember who that was.
He said that “she (Miss LD) did state that she had come from the pub”.
He said that her daughter, now 20, was
in court and would give evidence that
she was waiting to hail the arriving taxi
and that she had spoken to [Gardai] at the scene.
IN HIS SUBMISSIONS to the court Mr Horan said he was seeking a dismissal of the prosecution on the grounds that the manufacturer’s instructions for the alcometer were clear and had not been followed.
He referred to the 2003 High Court case of DPP v Marie Quirke which stated that where the Garda knew or had reason to suppose that alcohol had been consumed in the last 20 minutes, he should wait twenty minutes from that last drink before demanding a roadside breath test.
He advised the court that he had a copy of the judgment in court if the court wished to see it.
He also referred to Mr David Staunton’s book Drunken Driving directly:
“Where a Garda knows or has reason to suppose” he said “that alcohol has been consumed in the preceding 20 minutes it is a very straightforward matter: the requirement for a preliminary breath specimen should be delayed until at least 20 minutes have elapsed since the persons last alcoholic drink”.
“As regards what precisely ‘reason to suppose’ means is ultimately a matter for evidence and consideration by a trial judge.
Anecdotal evidence would suggest that an admission by a defendant regarding the recent consumption of alcohol, evidence of alcohol containers in the defendant’s motorcar or a defendant being observed by a Garda or other person leaving a public house, may be sufficient to put a Garda on notice about the consumption of alcohol in the preceding 20 minutes and therefore require a waiting period as per the manufacturer’s instructions”.
Mr Horan said that the test was where the Garda “knew or had reason to suppose”. While Garda Quinn did not definitely know that Miss LD had been drinking, having seen the male drinking a bottle of Smirnoff vodka he was “on notice that alcohol was being consumed in the car”.
He said that he had specifically put it to Garda Quinn that having seen the male drinking in the front passenger seat, Garda Quinn would have had “reason to suppose” that alcohol was being consumed.
“Garda Quinn had agreed with this suggestion”.
He said that this was an unusual case whereby the consumption of alcohol was being visibly seen by both Gardai.
Additionally, he said, Sergeant Owens had very fairly said in evidence that Miss LD had [stated] “that she had come from the pub”.
Judge McAleese said that he had not made a note of this remark by Sergeant Owens. Mr Horan said that Sergeant Owens did say this in evidence and that he had made a note of it.
In response Mr Hayden on behalf of the DPP referred to the High Court case of DPP v Slattery 2017. He said that that case had established that a Garda did not have to ask a motorist whom they had suspected of consuming alcohol when they had their last alcoholic drink.
He argued that it wasn’t correct to say that the test was that the Garda “knew or ought to know”.
In response Mr Horan told the court that he completely agreed with Mr Hayden’s argument and that Mr Hayden was absolutely correct in his assessment of the Slattery case.
But he said that the circumstances were different in Miss LD’s case.
He told the court that Miss LD’s case was similar to the Marie Quirke case “which had not been overruled” since 2003.
He said that when Garda Quinn had seen alcohol being consumed in the car he was “on notice” and that an enquiry of some sort was now required as to when Miss LD had last drank.
He told the court that this requirement on the part of the Garda was specific to limited circumstances.
He said that if a motorist comes to a checkpoint having drank alcohol in the last few minutes and tells the Garda that his last drink had been some hours earlier, then no waiting period was required before a breath test could be conducted. It wouldn’t be required because the Garda had no knowledge of any recent consumption of drink.
But this case was different he argued.
Garda Quinn was aware of alcohol being consumed in the car and Sergeant Owens fairly said that she had stated that she had come from the pub.
Judge McAleese summed up the case.
He said that he did not believe, from the evidence before him, that Miss LD had intended to drive. He said that the consumption of alcohol in the car as well as Miss LD’s admission that she had come from the pub “should have put the Gardai on notice” about the recent consumption of alcohol. An enquiry as to when the person had last consumed alcohol was therefore necessary.
In all the circumstances he said he would “allow the appeal”.
Miss LD’s appeal was successful.