‘Clock was ticking’ as gardaí tried to process prisoner who could not give a urine sample

ASDEE MAN’S ‘REFUSAL’ CASE DISMISSED AT LISTOWEL DISTRICT COURT AMID ‘UNFORTUNATE’ CIRCUMSTANCES

A CASE of a ‘refusal’ to provide a blood or urine specimen against a North Kerry man was dismissed at Listowel District Court on Thursday, November 15, as the details of the case amounted to ‘an unfortunate set’ of circumstances that left the Judge presiding with what he said was no option but to dismiss.

Among the circumstances of the prosecution alluded to was the fact that the defendant was unable to provide a urine sample – despite Gardaí running taps – and that he refused to give blood, citing a ‘fear of needles’.

The circumstances existed ‘beyond the gardaí’s control’ Judge David Waters found in the case of James O’Donoghue, Littor, Asdee, who contetsted a charge of refusing to provide a blood or urine specimen after his arrest on suspicion of drink-driving at Skehenerin, Listowel, on March 26 of last year.

Garda Frank Stafford informed the Court that he and colleage Garda Tom O’Sullivan had been in the patrol car driving from Moyvane back into Listowel when they saw a van appear to ‘cross the white line’ driving towards them.

Gda Stafford told the Court that he got a strong smell of intoxicating liquor from Mr O’Donoghue’s breath on speaking with him once the van had been stopped.

Gda Stafford said the defendant’s eyes were bloodshot and that his speech was slurred.

A roadside breath test came up positive for excess alcohol, Gda Stafford explained. And when he asked Mr O’Donoghue when he had last consumed alcohol, Mr O’Donoghue informed him ‘about an hour ago’.

The garda said he arrested Mr O’Donoghue at 11pm, and conveyed him to Listowel Garda Station for processing. It was 12.50am – on March 27 – when trained ‘Intoxyliser’ operator Gda Cregan tested Mr O’Donoghue’s breath, returning to the public office to inform Gda Stafford that there had been a ‘breath differential’ between the two readings required – nullifying the result.

Gda Stafford said he contacted Southdoc as a result, with a doctor attending at 1.05am. Mr O’Dononghue opted to provide urine but ‘he was unable to provide a sample, indicating he couldn’t pass water... I turned on the taps, and gave him a drink of water,” Gda Stafford said. Mr O’Donoghue refused to to give a sample of blood, ‘saying he was afraid of needles’, the gda added.

Solicitor Pat Enright first queried the time of arrest, saying it was some minutes earlier than 11pm. Under cross-examination by Mr Enright, Gda Stafford said that he had allowed Mr O’Donoghue use the toilet at 11.30pm, accepting that gardaí had assumed then the breath machine would be in use.

Southdoc had been told to cancel the initial call for a doctor that was made to them by Gda Stafford at 12.23am, when the trained Intoxyliser operator, Gda Cregan, finally arrived to the station – bringing Mr O’Donoghue into the room in which the machine is located at 12.36am.

Under Mr Enright’s questioning, it emerged that gardaí had once more to phone Southdoc – at 12.55am – when it was clear the breath machine had failed.

At this point ‘there was an hour left to take the sample... the clock was ticking at that stage,’ Mr Enright said, referring to the three-hour limit gardaí have to process such cases.

It was 1.34am by the time the doctor arrived, leaving 22 minutes, Mr Enright said.

“I have to put it to you that if time was on your side, he would have been given more time to provide a sample, “Mr Enright said. “In fairness to him, the problem was not of his making,” Mr Enright added, arguing that the chain of events presented was ‘all over the place’.

Judge Waters remarked that gardaí are required to go ‘over and above’ in communicating both the fact of arrest and the reason for arrest in the case of refusals or failures to provide samples. “You have to point out the penalties, and that does not mean the disqualification, the disqualification is a consequence... you must explain penalties, the garda’s evidence is that he explained the consequences of his refusal,” Judge Waters outlined.

He found that gardaí had ‘acted quite correctly, giving him (Mr O’Donoghue) every opportunity... but there were unfortunate things beyond the garda’s control which amounted to an unfortunate set of procedures under the circumstances of which there is no option but to dismiss,” Judge Waters found.

He dismissed the charge of refusing to provide a sample of blood or urine for which Mr O’Donoghue was prosecuted.