Naas District Court heard interesting legal arguments last Wednesday, May 30, during a drink driving case when a barrister claimed that because the Gardai are now using a different machine to detect alcohol in the breath, there may be different procedures involved in processing the defendant.
Specifically, he wondered if the 20 minutes that the suspect must be observed eating or drinking nothing prior to giving a breath sample, was now in fact unlawful detention, given that no evidence was produced to show that it is required when using the new machine.
In the past, the 20-minute wait was part of the procedure when gardai were using a machine known as the ‘Intoxilyzer’. The higher courts have already dealt with the issue of whether those 20 minutes were justified.
However, now that the ‘Evidenzer’ is being used, counsel for the defendant, Martin Dully BL, argued that the prosecuting gardai should be in a position to provide evidence of the necessity to detain the defendant, Michael Nolan, whose address is listed as 100 Brooklands, Clane, for those 20 minutes.
Under questioning, the garda witnesses, garda Carragher and garda Cooke said simply that this was how they had been “instructed to use the machine”. They did not produce an operating manual for the Evidenzer.
In his argument to the court, counsel noted that “we can’t simply assume it’s the same as the old machine”.
Mr. Nolan was arrested on suspicion of drink driving on February 12 last at Capdoo Commons, Dublin road, Clane when Gardai stopped him driving his black Saab 93.
As Garda Carragher pulled alongside him and asked him who he was, he noticed that there was a strong smell of intoxicating liquor from him and he had bloodshot eyes.
They believed he had consumed, and was under the influence of, an intoxicant and arrested him. He was brought to Naas Garda Station.
Responding to Counsel’s arguments, Inspector Patsy Glennon noted that the “argument suggests that we should go back to the days before these matters were already decided by the higher courts”, and described the line of argument as “nonsense”.
But Counsel persisted “he’s not in a position to assert that – there’s no training manual.
“All we know is that the garda was instructed to do it that way. He did it because he was told to do it that way.
“We’re being given no evidence as to how it works.”
Judge Patrick Clyne clarified the argument, noting: “So if the 20 minutes is not justified then it could be an unlawful detention?”
“Yes Judge,” Counsel agreed. “The 20 minutes must be justified as to their necessity and no evidence has been presented as to their justification.”
Judge Clyne told counsel that he could “see where you’re coming from, but I won’t change my view.
“It has been found that two hours is justified when people are waiting for a doctor.”
On that basis he found the defendant guilty.
Mr Moran has one previous conviction, but of sufficient antiquity that he treated the new charge as a first offence.
The defendant sells software as a business.
“This is a disastrous situation for him,” counsel noted.
He was fined E600 and disqualified for three years. However, the disqualification was postponed for six months.