Asthmatic claimed he could use inhaler before taking a breath test

ATTEMPT TO HAVE DRINK DRIVING CHARGE DROPPED FAILS AS MOTORIST IS BANNED

CONFLICTING evidence was heard at the District Court last week after a Bunclody man who suffers with asthma claimed that he was allowed to use his inhaler just before undertaking a breath test at Enniscorthy Garda Station.

It was argued that as a result of this, the obligatory 20 minute period of observation was rendered obsolete and that John Doyle (29) of Lower Ballyshancaragh, Kildavin, Bunclody, was illegally detained.

An application was therefore made to dismiss the drink driving charge against him.

Garda Patrick Doyle gave evidence that on February 4 last, he observed the white Nissan Qashqai, being driven by the defendant, leave the road and collide with an ESB pole at Carrigduff, Bunclody. He said there were wires down and smoke coming from the car, but he managed to get the defendant out through the passenger door. Although he had a sore neck, Doyle (the defendant) was said not to have been seriously injured.

Garda Doyle said that he got a smell of intoxicating liquor from the defendant, his eyes were glassy and he was unsteady on his feet. At this point he was arrested on suspicion of drink driving and conveyed to Enniscorthy Garda Station.

Upon reaching the station, Doyle was introduced to the member in charge, Garda Siobhan Murray, who took his belongings, including his inhaler from him. It was at this point that discrepancies arose as Doyle said that he had a conversation with Garda Murray about being asthmatic and that he may need his inhaler to give a sample using the intoxilyzer machine. He said that she took the inhaler from the brown envelope and placed it beside him, which he understood to mean it was okay to use. He subsequently did this, before returning a reading of 64mg of alcohol per 100ml of breath.

Under strong and lengthy examination from Barrister Martin Joseph Dully, both gardaí strenuously denied giving the inhaler to the defendant or him using it before providing a sample.

From the stand, John Doyle said that he suffered from chronic asthma since the age of two and never left home without an inhaler. He said as recently as March he had been hospitalised as a result of the condition. He said on the night in question, he used the inhaler just before he stood up to give a breath sample.

‘Garda Doyle saw me use it,’ he said. ‘He seemed like he wasn’t very happy with me for using it.’

Cross-examining Doyle, Inspector Mark Foley pointed out that he himself was an asthmatic and used the same type of inhaler - one he said was ‘the lowest possible dose’. When he asked Doyle if he had had an asthma attack when he hit the pole, he replied that he had not.

‘So what you’re telling me is that a personal item was left beside you, going against every single garda custody regulation? I put it to you that you’re telling lies,’ Inspector Foley said, getting quite heated. ‘There’s no way you were left with the inhaler.’

At this point, Judge Haughton urged calm. Inspector Foley then asked Mr Doyle if the inhaler contained any alcohol that he knew of, to which he replied no.

Concluding, Mr Dully said that there was ‘no reason to disbelieve’ his client’s evidence and that at very least, it couldn’t be proven beyond a reasonable doubt.

‘There is a conflict of evidence as to whether he was given back his inhaler,’ said Judge Haughton. ‘Garda Murray was very definite about what happened.

‘We’re dealing with the recollections of a defendant who had a fair amount to drink and had been involved in quite a serious road traffic accident. Both gardaí deny that the defendant was given the inhaler.’

‘I do not accept that he has a clear recollection of what occurred,’ he continued. ‘Nor do I accept that he used the inhaler. Even if he did, there is no alcohol in it and there is no evidence to suggest that the certificate given by the intoxilyzer is inaccurate. I’m satisfied that the defendant was lawfully in custody at all times and I’m going to convict.’

Mr Dully told the court that his client had no previous convictions and worked in the hospitality trade, so the loss of his licence was likely to have a major impact. Having heard everything, Judge Haughton handed down a €750 fine and a two year driving ban.