Obscure ruling could see man off drink driving charge

A drink driving case was adjourned for a fortnight in the District Court this week (October 9 ) when a judge accepted a defence solicitor’s contention that a Supreme Court decision in March could allow the defendant beat the charge.

Before the court was Damien Kilmartin (46 ) with an address in Glasson, who had been arrested by Garda Shane Kenna in Athlone on April 19 on suspicion of drink driving.

When he was subsequently brought to the garda station, Kilmartin could not or would not provide a sample of breath for analysis, and so was charged with refusing to give a sample, an offence that carries a mandatory four-year ban.

However, Kilmartin’s solicitor, Mr Dara Hayden brought the court’s attention to a Supreme Court ruling on March 11 in DPP-v-Cagney which upheld an earlier High Court appeal.

This ruling found that, in the case of a refusal to give a breath sample, the arresting garda should now be obliged to offer the subject the alternative of a blood or urine test “as long as there was substantial reason not to give breath”.

Before this Cagney precedent the arrested person was obliged to offer the alternative sample in place of the failed breath test, if they were to avoid the mandatory four-year ban, but in March the Supreme Court found this to be unfair.

In court this week, Judge Seamus Hughes told Mr Hayden he was aware of this ruling, but felt that the requirement to ask for a blood or urine test hinged on the defendant having “a substantial reason not to give breath”.

“If this wasn’t the case all refusals could be thrown to the wayside,” he said.

The judge conceded Mr Hayden had a position in this, but adjourned a decision until October 23: “for all sides to check on the legal arguments in this case

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