‘Worth a try’ to fight drink driving charge: Limerick judge

Donal O’Regan

Reporter:

Donal O’Regan

A JUDGE who found a man guilty after he contested a drunk driving charge said she would have done the same and fought the case.

A JUDGE who found a man guilty after he contested a drunk driving charge said she would have done the same and fought the case.

“Your livelihood is at risk. I would have done the same. It was worth a try to fight your corner.

“The state might not be happy about it but it is your prerogative,” said Judge Aingeal Ni Chonduin at Kilmallock Court.

Edmond Cleary, aged 23, of Tread na Ri, Kilfinane pleaded not guilty to drink driving at Rathgoggin Middle, Charleville on March 18, 2012.

Garda Nicholas Phelan said he and a colleague were on mobile patrol shortly after 3am.

“We were exiting the Charleville Park Hotel. There was a car in front of us without any lights on.

“As it travelled up the main Limerick Road the lights came on in the car but the driving was erratic. The car veered on a number of occasion onto the wrong side of the road,” said Garda Phelan, who subsequently stopped the car.

“There was a strong smell of intoxicating liquor from his breath and his speech was slurred,” said Mr Phelan.

Cleary was conveyed to Mallow garda station and arrived at 3.50am. After the 20 minute period of observation Garda Liam Doyle took Cleary to the doctor’s room to perform a breath specimen, the court heard.

“Garda Doyle said the reading came up ambient fail and we would not be able to proceed.

“I told Mr Cleary I would now be calling a designated doctor to come to the garda station to take from him a specimen of blood or urine,” said Garda Phelan.

The doctor arrived at 4.38am and Cleary chose to give a urine sample at 4.43am. The resultant reading was 160mgs of alcohol per 100mls of urine.

“He was co-operative at all times,” said Garda Phelan, who then dropped Cleary back to Charleville.

Cleary’s solicitor, Denis Linehan, asked Garda Phelan how he could justify detaining his client when the procedure failed through no fault of the defendant.

“He was still in custody,” said Garda Phelan.

Garda Doyle took the stand and Mr Linehan asked him what is an ambient fail?

He said the machine goes through a test sequence when it is turned on and in this instance “some volatile prevented it from working properly”.

“When it was purging itself the machine gave ambient fail and stopped,” said Garda Doyle.

Mr Linehan asked why he didn’t try again.

“I would have been incorrect in my duty,” said Garda Doyle.

Mr Linehan said the basic concept in prosecutions is the accused is entitled to fair procedure.

The solicitor said things are stacked in favour of the state and his client was not given fair procedure.

“For breath the defendant must give two specimens and only one specimen was allowed. The state didn’t attempt to comply with two specimens,” said Mr Linehan.

Referring to Garda Phelan’s written statement he said the garda said he sent the urine “specimen” to the bureau.

Garda Phelan said both urine specimens were posted and that his language was “sloppy” in the statement.

“When the prisoner chose not to take the second specimen with him both must be sent off. The garda put it down as a grammatical error but it is clearly a breach,” said Mr Linehan.

In conclusion he said that the whole prosecution was tainted. Citing previous case law Mr Linehan said after the machine failed “all evidence collected by the state is not allowed”.

Responding, Superintendent Pat McCarthy said it is garda’s prerogative to take breath, blood or urine sample.

Many garda stations have no machine for breath, he said.

“When ambient fail came up he can’t attempt it again. If he had gone back it would be three attempts and it would be dismissed. The garda has three hours to take a sample,” said Supt McCarthy.

Regarding Garda Phelan’s statement, Supt McCarthy said there was only an s missing from a word.

Judge Ni Chonduin found Cleary guilty but said Mr Linehan had “tried very hard”.

In mitigation, Mr Linehan said client has no previous convictions and has never been in trouble.

He asked Judge Ni Chonduin not to penalise Cleary for contesting the case.

“Your livelihood is at risk. I would have done the same. It was worth a try to fight your corner.

“The state might not be happy about it but it is your prerogative,” said Judge Aingeal Ni Chonduin.

She disqualified Cleary from driving for three years and fined him €300.