Man who drank VITHIT has drink driving case dismissed

A JUDGE dismissed a drink driving charge against a man who consumed a VITHIT after he was stopped by gardai.

William Carey, aged 46, of Tourlough, Ballina, Killaloe pleaded not guilty to the offence at Main Street, Adare on July 5, 2022.

Sergeant Kevin Burke said he was on mobile patrol at around 10.45pm when he observed a car on a grass margin.

The garda sergeant said when he spoke to the driver he got a smell of alcohol and he was slurring his words.

Sgt Burke said he informed Mr Carey he required a specimen of his breath but didn’t have a Dräger breath test at the time but one would become available shortly.

“He opened a bottle of green juice and drank from it. I told him I had to observe him consume nil by mouth for 20 minutes before taking the test. The Drager was provided to me at 10.50pm. He got out of his car and walked around. At 11.06pm I performed the breath test and the apparatus indicated a fail. I arrested him on suspicion of drink driving,” said Sgt Burke.

Mr Carey was conveyed to a garda station where he gave a reading of 46mgs of alcohol per 100mls of breath.

Martin Joseph Dully BL, instructed by Kevin Power, solicitor, represented Mr Carey.

The barrister said he had no issue with Mr Carey being detained from 10.45pm to 10.50pm while the sergeant awaited for the Drager to be brought as that was within the statutory powers.

Mr Dully queried the following 16 minutes when Mr Carey was told not to consume anything.

“You say he was free to exit the vehicle but you were ensuring he was not allowed to consume anything. He had to remain within your sight and physical custody. He was effectively kept under your observation,” said Mr Dully.

Sgt Burke said Mr Carey was not under arrest and was free to go.

Mr Dully said the “green juice” drank by Mr Carey was a VITHIT. Sgt Burke said he didn’t see the branding on the bottle.

Mr Dully asked the sergeant where was the direction that the Drager should not be used for 20 minutes after a liquid was consumed.

Sgt Burke said from the operator manual which he had in court.

“I didn’t want there to be an effect on the reading,” said Sgt Burke.

Mr Dully said it referred to the consumption of alcohol. Sgt Burke said he did not know what was in the bottle and it was not unreasonable to assume there could be alcohol in it.

Mr Dully applied to Judge Carol Anne Coolican to strike the matter out. He said his client was lawfully detained for the first five minutes when Sgt Burke was awaiting for the Drager to arrive but Mr Carey being detained for the following 16 minutes was unlawful.

“He was effectively detained at the scene. He was kept under observation and not permitted to consume anything. There is no halfway house between freedom and detention. There were no statutory powers to detain a person in those circumstances,” said Mr Dully.

In response, Inspector Barry Manton, prosecuting, said Sgt Burke had exercised an abundance of caution and applied best practice in relation to waiting 20 minutes to administer the Drager test.

Insp Manton said Sgt Burke simply did not know if there was alcohol in the green juice or not.

“In fairness to the accused he waited 20 minutes for the Drager test, which led to his arrest, to be administered. There was nothing compelling him,” said Insp Manton.

Judge Carol Anne Coolican said there was no dispute regarding the detention prior to the arrival of the Drager.

“I don’t think there are styles of detention. I don’t believe being free to move is the same as being free to go. I am going to dismiss. I have to apply the law,” said Judge Coolican.