Drivers saved by the steam of their pee
TWO drink driving cases were thrown out of a Kerry court last week after the presiding judge ruled that the steam of the drivers' pee could have affected their alcohol readings.
Timothy O'Sullivan, of 12 An Turinn Linn, Milltown, and Patrick Keane, of Dromore, Farranfore, were last week before Killorglin District Court on separate charges of drink driving.
The law requires that a person suspected of drink driving must be observed by a garda for 20 minutes before being breath tested at a garda station. They must not take anything by mouth during this period.
Based on their legal requirement, Judge James O'Connor ruled that when each defendant went to the toilet at the garda station, they could have inhaled steam from their urine, making the observation period and the 'nil-by-mouth' rule null and void.
Solicitor Padraig O'Connell confined his defence to the observation period, arguing that both clients had used the toilet to urinate, thereby interrupting the 20minute period. It was suggested that a new 20minute observation period should have commenced upon their return from the toilet.
Sgt English told the they were using the urinal.
The court was told that Mr O'Sullivan, who returned a breath alcohol reading of 57mg on February 2, had used the urinal seven minutes into the observation period.
Mr Keane, who had requested the toilet after the first minute of the observation period, returned a reading of 37mgs when tested on May 5. The reading was just two milligrams over the legal alcohol limit.
The defence argued that observation at the urinal was of the defendants' backs, and that the garda could not see their mouths at the time.
Mr O'Connell also queried what the precedent was when a female was involved. Sgt English responded that the observation period would have to begin again and agreed that he would do this in future.
In giving his decision, Judge O'Connor stated that the purpose of the 20-minute period is to ensure nothing is taken by mouth that may affect the reading.
"Nil by mouth is the same as nil by nose," the judge stated. "When he is urinating he is inhaling vapourised alcohol and there's always steam off it."
Judge O'Connor then commented that the point comes up time and again. "If the State did its work we wouldn't have to do this each time," he added.