In some cases, yes.
A DRUG DRIVING prosecution was withdrawn by the State at Clifden District Court on 25 April. An issue arose over the legality of a Mandatory Intoxicant Testing (MIT) checkpoint at which the motorist had been stopped.
Mr ED was represented in court by Eugene Deering BL, instructed by Patrick Horan, Solicitor.
Mr ED had been arrested at a MIT checkpoint at Ballyconneely village, Clifden, County Galway in April 2023.
A specimen of blood was later taken from him at Clifden Garda station, showing the presence of cocaine.
If convicted, Mr ED would have been disqualified from driving for 12 months, the normal sentence for drug driving.
In order to have been arrested at 9:03pm
after a test that took 8 minutes...he had
to have been stopped at 8:55pm, or earlier.
The MIT checkpoint authorisation specifically allowed
for the stopping of motorists from 9pm to 11pm only.
MIT checkpoints must operate under strict drug driving legislation. A member of the Gardai not below rank of Inspector can give written authorisation for the date, time and specific location of such checkpoints.
Under this authorisation the Gardaí conducting the checkpoint can stop any vehicle. They can require the driver to provide a breath or oral fluid (saliva) specimen.
The legal powers granted by an MIT checkpoint are considerably greater than those of a regular checkpoint. Any motorist can be required to give a breath or saliva specimen whether or not the Garda believes that they may be impaired.
Because these powers are so vast and because a roadside failure will result in arrest, the High Court has repeatedly indicated that they require “strict compliance” with the terms allowing for the MIT checkpoint to be established.
In Mr ED’s case a peculiar issue arose from the Garda evidence about the setting up of the checkpoint. The checkpoint was authorised between the hours of 9pm and 11pm only on the night in question.
From an examination of the evidence, it became apparent to the Defence that the checkpoint had been established before its authorised time of 9pm.
The legal powers granted by an MIT checkpoint
are considerably greater than those of a regular checkpoint.
Any motorist can be required to give a breath or saliva specimen
whether or not the Garda believes that they may be impaired.
According to the prosecuting Garda’s statement Mr ED had been stopped at Ballyconneely, Clifden, Galway on 29 April 2023. A specimen of saliva was demanded which Mr ED provided.
The test took “8 minutes” and showed “a positive result for an intoxicant”, in this case, cocaine. This was explained to Mr ED, and he was arrested at 9.03pm for the offence of drug driving.
IN ORDER FOR MR ED to have been arrested at 9:03pm after a test that took 8 minutes to complete, he had to have been stopped at 8:55pm, or earlier. The MIT checkpoint authorisation specifically allowed for the stopping of motorists from 9pm to 11pm only.
This meant that Mr ED had been stopped at a time not allowed by the written authorisation of the Garda Inspector.
In such circumstances the “exclusionary rule” now applies: as the arrest was not lawful the later specimen of blood taken in the Garda station was inadmissible against Mr ED.
With the Defence ready to challenge the lawfulness of the MIT checkpoint, the State confirmed to Mr Eugene Deering BL and the Court that they were withdrawing the drug driving prosecution against Mr ED.
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