A man who had been found drunk, standing next to his car with the keys in the ignition after gardaí received reports that a traffic island had been hit, had his case dismissed last week on the grounds of unlawful detention, no evidence that he had been driving or intended to do so, and that a member of the Gardaí had not informed him that he was trained in the use of an intoxiliser machine.
Damien Hanley of Carrigan, Craughwell, appeared at Galway District Court last Wednesday to contest the offence of being a person in charge of a vehicle when a quantity of alcohol was in his system on December 10, 2007, at the Dublin Road.
Garda Gerry Sweeney told the court that when on patrol at Moneenageisha Cross there was a report of a car which had “struck a raised traffic island” on the Dublin Road. At 2am Garda Sweeney saw a car parked at the bus stop opposite the Bon Secours Hospital. As he pulled up beside the car, he could see the defendant was standing outside at the driver’s door, the “keys were still in the ignition”, and the front wheel tyre on the driver’s side was flat. When Garda Sweeney asked Hanley if he was OK the defendant asked for help to change the tyre. Garda Sweeney added that at this point he could see that Hanley was under the influence of an intoxicant and could get a strong smell of alcohol from his breath. The defendant also said at the time that he had been “driving out the road when he hit a curb”. He again asked the garda to help him change a tyre and when asked what he intended to do the defendant said that he was going to drive home.
Hanley was arrested and brought to Galway Garda Station at 2.15am where Garda Sweeney began the 20 minute observation period. When Hanley was brought to the doctor’s room at 2.50am he gave a reading of 105mgs per 100ml of breath. Garda Sweeney said that there had been a delay in using the intoxiliser machine as another person, arrested for drink driving, was being processed.
Barrister for Hanley, Brendan Browne JC, put it to Garda Sweeney that the defendant had been outside the car but had exited the vehicle with the intention of going into the back seat to sleep for the night and that there had been no tools to suggest that he wanted to change a tyre.
Under further questioning Garda Sweeney admitted that he had not informed Hanley that the 20 minute observation period had finished and that there was a delay. Mr Browne then made an application for the case to be dismissed on the grounds that there was no evidence of intention to take control of the vehicle or an attempt to drive, there was no evidence of Garda Sweeney informing the defendant that he was a trained operator of the intoxiliser machine, and there was unlawful detention; He said, according to a High Court decision (DPP v Robin Fox ) there is an obligation on the gardaí to inform the defendant of any further detention and the reason.
Judge Aeneus McCarthy dismissed the case.