Athy man acquitted of failing to provide breath sample when Gardai couldn't provide breath test report

Found guilty of being drunk in charge of car

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Athy man acquitted of failing to provide breath sample when Gardai couldn't provide breath test report

The Athy man was arrested on suspicion of being drunk in charge of a vehicle.

A man has been acquitted of a charge of failing to provide a breath specimen when arrested on suspicion of being drunk in charge of a vehicle, because there was no proof a breath test was carried out.

An Evidenzer machine that takes breath specimen wasn’t working in two Garda stations on the day Olawale Gazal was arrested, Naas Court heard.

Mr. Gazal, with an address at 7 Moneen Drive, Rheban Manor, Athy, appeared before Naas District Court on April 19 last.

Garda Dave McGrath gave evidence to the court that on January 11, 2012, he received a call of an alleged disturbance on Dublin Road, Athy at approximately 7.50am. When he arrived on the scene, he came across a female standing outside a vehicle, who seemed to be shouting at someone in the car.

Garda McGrath said that when he pulled up horizontally to the car, a male (Mr Gazal), was in the driver’s seat. Garda McGrath said that Mr Gazal then moved over to the passenger seat. Mr Gazal denied doing this. Mr Gazal told Garda McGrath that himself and the female shared the car, and both needed to use it, with Mr Gazal looking to drive to work in Dublin.

Garda McGrath said there was “a strong smell of intoxicant liquid off his breath”, and asked the defendant for the keys of the car, which he subsequently found in his pocket. Garda McGrath brought him first to Athy Garda Station, and then to Carlow Garda Station, because the Evidenzer machine that takes breath specimens wasn’t working.

Garda McGrath said the machine in Carlow subsequently broke, so there was no test printed. There was no record of a breath test. He said he never received a reason why it didn’t operate on that occasion. The solicitor for Mr Gazal said her client denied being in the driver’s seat, and maintained that the woman who was the witness had thrown the keys on the car floor.

 Mr Gazal had taken them up and that’s why they were in his pocket. The solicitor asked Garda McGrath if her client had been fully co-operative, to which he agreed.

The court heard how there was four attempts made to take a breath specimen from Mr Gazal in Carlow Garda Station. Garda McGrath said there was no evidence that the Evidenzer machine was faulty until the fourth attempt was made.

Mr Gazal’s solicitor added that her client gave every effort to provide a breath specimen, but it was not possible to get a reading so there was no evidence. However, Garda McGrath said he didn’t believe Mr Gazal gave a full effort.

The solicitor asked Garda McGrath why her client wasn’t originally charged with failing to provide a specimen, to which he replied saying it was an “unusual event”, and he had to get direction first.

The Garda said he had hoped to get a record of the breath test at the time.

The solicitor said her client was pleading not guilty to both charges of drunk in charge of a vehicle and failing to give breath specimen based on the fact that he said he was not in charge of the vehicle and there was no statement a breath specimen was taken because of the faulty Evidenzer.

The solicitor said that it was not the case Mr Gazal failed to give a specimen. She added that there seemed to be ambiguity in evidence that her client wasn’t charged with failing to give a specimen on the day.

She added that she was applying to the Judge for direction of dismissal based on this.

Inspector David O’Sullivan said that as far as the State was concerned, there was enough evidence. He said it is the State’s case that Mr Gazal didn’t provide a sample after four tries. He said that the subsequent charge was no later than 13 days after the incident, and that it was an unusual and complex case. Inspector O’Sullivan added that there was also an intent to drive.

Judge Desmond Zaidan said from his experience of 30 years in the legal business, it is necessary to provide proof of a print out of a breath test to the court. On that grounds, he aquitted Mr Gazal of failing to provide a specimen.

Judge Zaidan said on the charge of being drunk in charge of a vehicle, there was a “presumption there he (Mr Gazal) intended to drive to work”. He said he considered the evidence and submissions carefully, and believed the State proved this charge. He fined Mr Gazal €400 and disqualified him from driving for four years.