FORMER All Star Limerick hurler Mark Foley had his drink driving case dismissed after using what Judge Eugene O’Kelly described as the ‘hip flask defence’.
Mark Foley, (37), walked free from court after his ex-garda uncle, Jerry Foley, admitted supplying him with whiskey before the sports star could be breath-tested by gardai after he knocked down a pedestrian.
District Court Judge, Eugene O’Kelly, said he had no option but to strike the matter out as the State could not dispute Jerry Foley’s evidence - which the judge said, provided the “hip flask defence”.
Judge O’Kelly said: “I am gravely concerned there was cuteness and conniving between the uncle and his nephew”.
Jerry Foley told Judge O’Kelly he had given a small bottle of whiskey to Mark Foley - who had knocked down a pedestrian - because his nephew was “stressed out” and “not looking well”.
After reluctantly dismissing the case, the judge added: “What is particularly appalling in this case is that...I don’t accept the evidence of the uncle that he is not aware of the hip flask defence”.
Judge O’Kelly said it gave him “no pleasure” to make the order dismissing the case. He added: “The law has been cleverly used by someone with an insider’s knowledge of the system”.
In the early hours of October 16, 2010, Mark Foley knocked down Arturas Grabliauskas, (24), a Lithuanian, who had been living in Rathkeale, Co Limerick at the time.
Mr Grabliauskas, who had been drinking in Newcastle West earlier in the night, was walking home when he was struck by Foley’s Mercedes C200 at around 2.20am.
Instead of reporting the accident immediately to gardai, or call an ambulance, the former two-time All-Star hurler put Mr Grabliauskas into his car and drove him to the Mid-Western Regional Hospital in Doradoyle.
Last February, Mr Foley, of Abbeyview, Adare, was banned from driving for 12 months for failing to report the accident.
After Mr Foley - who admitted he may have had a glass of wine before driving on the night - arrived at the hospital, a staff member contacted gardai.
Mr Foley said, following the incident, he panicked and telephoned his uncle Jerry, of Ennistymon, Clare. He said he asked the ex Garda for his advice.
Jerry Foley told Judge O’Kelly: “I told him to contact the emergency services. I said I would go and see him down there (hospital), which I did. I arrived at around...3.20am”.
“He (Mark) was stressed out. I tried to calm him down. He was talking constantly. I asked him had he talked to the gardaí, he said ‘yes’. I asked him had he been breathalysed, he said ‘no’.”
Jerry Foley said, when he asked gardaí what was then going to happen to his nephew, he was allegedly told Mark was going to be taken to the scene of the crash to show gardaí where he hit the man, and he would then be allowed to go home.
“Mark wasn’t looking well. He was sick in his stomach. He was on his second cup of coffee. I went out to my van and I got him a little bottle of whiskey. He put it in his coffee,” Jerry Foley told the court.
Mr Foley admitted in court he had not told gardaí that his uncle had given him the whiskey.
“I didn’t want anyone else involved. I was being charged with drink driving...I was being breathalysed. I knew I had failed (the breath test),” Foley told the judge.
After failing a roadside breath test outside the hospital, Foley failed a second breath test at Henry Street garda station at 5.18am.
The result, which showed him slightly over the limit, read 37mg of alcohol per 100 millilitres of breath.
Garda Sergeant Donal Cronin, prosecuting, said it “beggars belief” that a former garda would give his nephew, in his set of circumstances, alcohol.
Sergeant Cronin said, he had “the greatest doubts” about the account put forward by the Foleys.
“I can’t dispute it,” Sgt Cronin added.
Mr Hebert said the breath test result was “consistent with the shot of whiskey been consumed”.
“There was fog on the night in question and there was no evidence to suggest he (accused) was not in control of his car,” Mr Herbert added.
Dismissing the case, Judge O’Kelly reluctantly said: “I am satisfied the providing of the whiskey by the uncle put him (accused) over the limit”.