Kilmallock Courthouse
A GARDA had to shout at a man who was “fast asleep” in the driver’s seat of an SUV which was stopped on a regional road, Kilmallock Court heard.
Brian Fox, aged 25, of Clonlough, Mitchelstown pleaded not guilty to drink driving at Millmount, Kilmallock on July 19, 2021.
Garda Jerry O’Connor said he was on mobile patrol at around 1am when he observed a Toyota Landcruiser stopped in the outgoing lane from Kilmallock as he was coming from the Kilfinane direction.
“I turned the patrol car around. There was smoke coming from the front of the vehicle - I thought it was the smell of the clutch burning. I observed two males - in the passenger and driver seats - asleep. I called the driver. There was no answer. I shouted at the driver,” said Garda O’Connor.
The garda said he detected a smell of alcohol on the defendant’s breath and his eyes were glazed.
“I asked him if he had been drinking? He said he had been in Athlacca earlier,” said Garda O’Connor, who added that the keys were in the ignition and the engine was off.
Mr Fox was arrested on suspicion of drink driving and conveyed to Bruff garda station. The court heard the evidenzer machine was not working so a doctor was called. When the doctor arrived the accused opted to give a urine sample.
Garda O’Connor said the reading from the Medical Bureau of Road Safety was 207mgs of alcohol per 100mls of urine.
Denis Linehan, solicitor for Mr Fox, asked the investigating garda where exactly the vehicle was?
“Millmount, at the front of the courthouse,” said Garda O’Connor.
Mr Linehan put it to him that it was Gerard Road, Kilmallock.
“I don’t know it as anything but Millmount,” said Garda O’Connor.
Mr Linehan put it to him that it was the “incorrect location” and the vehicle was parked outside the church in Kilmallock.
“No. I was working on the night,” said Garda O’Connor.
Mr Linehan asked if he had “great difficulty waking him (Mr Fox)?”.
“Yes. It took over a minute,” said Garda O’Connor.
“He (Mr Fox) was in a deep sleep?” asked Mr Linehan. “Yes,” said Garda O’Connor.
Mr Linehan asked if the driver’s seat was reclined? “No,” said Garda O’Connor.
The solicitor asked if there was a restriction on parking there?
“It is a regional road. It was obstructing traffic,” said Garda O’Connor.
Mr Linehan asked if the garda had any interaction with the passenger?
“He was harder to wake. I brought him to Bruff for his own safety. The vehicle was not drivable. It had to be taken away,” said Garda O’Connor.
Mr Linehan asked for the drink driving charge against Mr Fox to be dismissed on a “fundamental point”.
The solicitor cited the Road Traffic Act 2010 which states, “A person commits an offence if, when in charge of a mechanically propelled vehicle in a public place with intent to drive or attempt to drive the vehicle (but not driving or attempting to drive it),”.
“The State has admitted the vehicle was immobile and was incapable of being driven,” said Mr Linehan.
Inspector Gearoid Thompson, prosecuting, said Mr Fox was still in charge of the vehicle.
“I am not a mechanic. It could have overheated and, given time, cooled down and been drivable,” said Insp Thompson.
Judge Patricia Harney said she had listened very carefully to all the evidence. She said Mr Fox had fallen asleep and was “essentially out cold”.
“The garda couldn’t rouse him. The vehicle had to be taken away. There was a smell coming out of it. Whatever about going to sleep there was smoke coming out of it,” said Judge Harney, who dismissed the drink driving charge against Mr Fox “on the merits”.
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