Drink-drive case thrown out after garda blunder

Tim Healy

A GARDA failure to grant a suspected drink-driver's request for a solicitor meant he was entitled to a dismissal of a charge against him for refusing to provide breath samples, the Supreme Court ruled.

Yesterday, the five-judge Supreme Court rejected the DPP's challenge to a January 2008 District Court ruling dismissing the charge of refusing to provide two breath samples at Blanchardstown Garda Station in Dublin. The man was brought in custody to the station at 2.18am on June 9, 2007, where he was given a notice of rights, which provides for a person to consult and communicate privately with a solicitor.

After some delay, because no garda in that station was trained to operate the breath test intoxilyser machine, an officer arrived and asked him to provide samples.

When he said he wanted to speak to a solicitor, the garda said he could do so as soon as he provided the samples. Lawyers for the man later successfully applied to the District Court to dismiss the charge of refusing to provide samples on grounds that he was denied a right of reasonable access to a solicitor

A district judge noted a lawyer would have advised him to provide a sample because, depending on the intoxilyser reading, he might not have been charged at all, or been subject to a shorter driving ban than the four years for refusal to provide a sample.

The High Court, in an appeal hearing, later upheld the judge's entitlement to dismiss the charge in an appeal hearing.

Arrest

Giving the Supreme Court judgment yesterday, dismissing the DPP's appeal against the High Court finding, Mr Justice Adrian Hardiman said, where a person is detained in consequence of an arrest, it has long been established they are entitled to consult with a solicitor.

In this case, the sole reason for refusing the request was the garda's belief the whole intoxilsyer specimen-taking process would be aborted if it were delayed to allow consultation with a solicitor and the garda would not be entitled to make another request for a specimen.

This mistaken belief was the source of the difficulty, but was an honest error and not invoked to maliciously deprive the man of his right to a solicitor, the judge said.

hnews@herald.ie