Monday 24 October 2016

High Court ruling puts hundreds of drink-driving cases under threat

Dearbhail McDonald and Ray Managh

Published 22/09/2015 | 02:30

The Evidenzer breathalyser
The Evidenzer breathalyser

Hundreds of drink driving prosecutions could be thrown out after a High Court ruling that a breath alcohol test statement is invalid if it is in English only.

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High Court Judge Mr Justice Seamus Noonan said there was "no ambiguity" in a law which says that gardaí - when using the Evidenzer alcohol breath test machine - must supply printouts from the machine in Irish and English.

Susan Gray, of road safety group PARC, said the news would be "very distressing" for families who had lost loved ones to drink drivers.

"Members of PARC were attending a number of court hearings where we observed solicitors asking judges to dismiss drink-drive charges for this very reason," she said.

"We wrote to the Minster (Paschal Donohoe) and asked him if there was a loophole there to close it as soon as possible.

"It is extremely worrying for us and it must be troubling for the gardaí also who are trying to bring these people to justice.

"Again, we call on Mr Donohoe to sort this out."

The decision centred on a case involving Mihai Avadenei who was accused of a drink-driving offence.

His solicitor, Michael Staines, argued in the District Court that the printed statement produced following the Evidenzer test conducted on his client was not valid because it was in English only.

Statutory Instrument 541 of 2011 sets out the prescribed form and manner of statements that must be provided in both English and Irish.

The DPP argued in the District Court proceedings it brought against Mr Avadenei (29), of Lioscianan, Swords, Co Dublin, that it was not required to print the form in two languages.

District Court Judge Colin Gibbons ruled that the document had not been "duly completed" and asked the High Court for a confirmation of his finding.

Under the Road Traffic Act 2010, Mr Avadenei faced up to six months in jail and/or a €5,000 fine for the offence.

Judge Noonan said that in April last year, a first breath test had been performed on Mr Avadenei after he had been stopped by a garda for driving at 80kmh in a 50kmh zone.

The garda noticed a strong smell of alcohol from Mr Avadenei's breath and performed the roadside breathalyser test, which Mr Avadenei failed.

He was then brought to Store Street Garda Station, where a further test on the Evidenzer machine revealed a concentration of 54 micrograms of alcohol per 100 millilitres of breath. The legal limit is 22 micrograms.

Judge Noonan said that once a specimen had been taken, the person must be supplied immediately by a member of the Garda Síochána with two identical statements in English and Irish.

"In my view, what arises in this case, being a failure to reproduce an entire half of the prescribed form, could not be regarded as 'mere deviation' from the form prescribed.

"It is not evidence at all and cannot be admitted," he said.

Scores of other cases were said to be on hold awaiting the decision.

Irish Independent

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