independent

Wednesday 27 August 2014

Drink drive case is called into question

Barrister raises point of law over new breath test 'evidencer' machine

Published 24/04/2013 | 05:20

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A MAN accused of drink driving had the case against him adjourned after his barrister made a legal point about the new breath testing machine.

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Mark Mulroy, (30), Gort Uaine, Clogherhead, pleaded not guilty to drink driving at Dundalk's Dublin Road on February 7 2012. Judge Flann Brennan heard an application from barrister Justin McQuade, which contended Mulroy's period of observation while in the Garda station was unlawful because it is not known whether the new breath test machines in Garda station, now known as 'evidencers' require Gardai to ensure that a suspect takes nil by mouth for 20 minutes before the test is taken.

Judge Brennan was told how Gardai on mobile patrol in the town centre at around 1am saw an Audi A4 driving on Park Street. They alleged the driver was on a mobile phone and they turned to follow him.

Gardai alleged they saw the Audi cross over the central line of the road a number of times and, after indicating him to stop, the driver pulled into the Topaz Garage on the Dublin Road.

Gardai claimed Mulroy admitted he had alcohol taken and he was arrested on suspicion of drink driving and taken to Dundalk Garda station, where he was observed for 20 minutes before a breath test was conducted by using a new 'evidencer' machine.

Barrister Justin McQuade, instructed by Brian Berrills Solicitors, told Judge Brennan the arguments over the breath testing machines used in Garda stations 'have come full circle' and he quoted two Supreme Court decisions that have helped shape court cases.

He said the Supreme Court has held that Gardai have to show 'objective justification' for keeping someone in custody for the 20 minute observation period that was required for the previous breath test machine.

Mr McQuade said in his client's case, there was an absence of justification as Gardai didn't refer to the evidencer manual or best international practice that stated a suspect needed to be observed for 20 minutes.

Judge Brennan said he was 'taking the (barrister's) point seriously'.

He said he had seen the previous breath test manual and had actually read it, but he didn't know if there is a manual for the evidencer.

The judge concluded that he wanted to carefully read the Supreme Court decisions referred to by the barrister and he adjourned the case to May 15 to allow him make an informed ruling on that date.

The Argus

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