Drink driving case dismissed due to unexplained delay

AN unexplained delay between the defendant arriving at Enniscorthy Garda Station and a doctor being called to take a sample has resulted in a drink driving case being dismissed after a marathon three hour hearing at the district court.

Sarah Morris (26) of Woodlands, Enniscorthy, was charged with drink driving at Farmleigh on June 12, 2016. Garda John O’Shea gave evidence that at 4.45 a.m. on the morning in question, he noticed Morris’ car driving slowly along the road with the boot up.

When he came up behind her, Morris pulled in to the side of the road and upon speaking to her, Garda O’Shea noticed that she smelled of alcohol, was unsteady on her feet and was not wearing any shoes.

He asked had she been drinking and she replied that she had eight drinks earlier in the night. At this point he said he formed an opinion that she was incapable of operating a mechanically propelled vehicle and arrested her.

She was brought to Enniscorthy Garda Station and eventually gave a sample that returned a reading of 144/100.

Solicitor Gerry Flynn meticulously picked through the evidence of Garda O’Shea and Garda Philip McGrath who was garda in charge on the night. He questioned why Garda O’Shea had not noted his formation of an opinion in his notebook or statement. He also questioned whether protocol had correctly been complied with in relation to the urine testing kit and medical forms as well as why there was a delay of an hour in between the defendant arriving at the station and the doctor arriving to take a sample.

He pointed out that there was no evidence as to who called the doctor and at what time.

Mr Flynn also questioned Garda O’Shea as to where he was for the period of the delay from 5.10 to 6.10 a.m. He replied that he and his sergeant had gone to the home of Morris’ father to inform him of the situation and ensure that the prisoner had a way of getting home when she was released. Mr Flynn said that his client had not asked for anyone to be contacted and that the garda had no statutory basis for going to her father.

Inspector Pat Cody was incensed by this and said that gardaí had no statutory basis to change a citizen’s tyre or get a cat down from a tree, but sometimes they act in the common good. In relation to the delay, he suggested that an hour delay was not unreasonable and that while there were certain gaps in the custody records, both gardaí were very junior and were on probation at the time and ‘experience will come’.

After a lengthy period, visiting Judge Bernadette Ryan rose for a period to consider all of the evidence in the case. When she returned, she said that she felt a number of the submissions raised didn’t prejudice the defendant in any way, however, there was ‘no evidence as to what time the doctor was called and by whom’.

‘In my view,’ she continued, ‘there is an unexplained delay and for that reason I’ll dismiss the charge.’