A 55 year old man who contested a drink driving prosecution had his case dismissed last week after his Defence barrister successfully argued the length of the observation period before a breath test was administered was ‘unjust’.
The court heard Lorcan Kirk with an address at Rockmount Gardens, Carrick Road, Dundalk was arrested on suspicion of drunk driving a short distance from Dundalk Garda Station.
A garda gave evidence last Wednesday of being on patrol at The Crescent, Dundalk at 8.30pm on September 19th last year, when he saw a white Mercedes approaching the roundabout and taking the first exit without indicating.
It went on to cross the centre white lines on numerous occasions before pulling into Rockmount Gardens.
The garda said he detected a strong smell of alcohol on speaking to the defendant whose speech was slurred and his eyes were glazed.
The Defence barrister argued it would take more than the two minutes recorded in the Garda’s notebook from observing his client, to making the arrest, but the Garda said he made the notes as Mr. Kirk was being arrested.
The member in charge at Dundalk Garda Station that night outlined how the custody record showed the defendant had requested medication for a heart condition and the arresting garda had introduced him to another Garda who began a period of observation to ensure he had taken nil by mouth before the breath test was administered.
The statutory time period required is a minimum of 20 minutes.
Shortly after 10pm, Mr. Kirk was assessed by a doctor who told him to take his medication when he got home and to stop drinking alcohol.
During cross examination by the Defence barrister, the Garda who administered the Evidenzer test – which Mr. Kirk failed, agreed the defendant had told him his medication was close by, but he explained that gardai cannot administer medication and added a doctor had been called for him.
Judge Eirinn McKiernan dismissed the charge, after Mr.Kirk’s barrister argued that the period of observation was ‘unexplained and unjust’.
He pointed out the arresting garda had stated he was continuously with his client who had consumed nil by mouth, but that information did not seem to have been given to the Garda who administered the test, who went on to ‘establish something that was already known by his garda colleague”.
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