Case highlighted disclosure issues and explanations for unreasonable delays in custody.
A DRINK DRIVING case was dismissed at Ennis District Court after the defence raised “delay” and “lack of disclosure” issues.
Mr. RL had provided a urine specimen that was later shown to be 2.5 times over the legal limit.
The case came before Judge Alec Gabbett who said that he took the issue of ‘delay’ very seriously and that any unreasonable delay in custody would have to be explained.
The State were not in a position to explain the delay in Mr. RL’s detention.
Judge Gabbett dismissed the prosecution.
Mr. RL was represented by Patrick Horan Solicitor.
ON 3 OCTOBER 2022 Mr. RL was seen driving along the Old Mill Road at 00:26hrs. Garda Pychynski was on duty and his attention was drawn to Mr. RL’s car because he believed that he was speeding.
Garda Pychynski followed Mr. RL whom he said was “crossing the continuous white line… swerving left to right” and exceeding the speed limit “drastically”.
He activated the blue lights of his patrol car, but this was “not effective”. He then turned on his sirens and this had “a similar effect”. It was at this stage that he formed his opinion that Mr. RL was incapable of having proper control of his vehicle.
He said that Mr. RL entered a roundabout and took an exit for Miltown Malbay. A short distance later he said Mr. RL “took a sharp left into private property”, eventually came to a stop outside his house.
He said that he got out of his patrol car quickly as he suspected Mr. RL was trying to evade capture.
Mr. RL identified himself to Garda Pychynski, who accepted in evidence that Mr. RL was “compliant”.
He spoke to Mr. RL and noted a smell of alcohol from him. He had “shimmery eyes” and a “flushed face”.
At 00:35hrs he decided to arrest him on suspicion of drink driving. He was placed into the patrol car and brought to Ennis Garda Station.
He repeated his view... that any unreasonable delay
in Garda custody needed to be explained
“whether 40 minutes or 1 minute”.
He asked Mr. RL if “he had any drink taken?”
He said Mr. RL replied that he “had 3 pints”.
Mr. RL arrived at Ennis Garda Station at 00:42hrs. He was processed in the custody area and advised of his rights. Garda Pychynski said that at 1:04am Garda Butler came into the custody area and introduced himself to Mr. RL.
He said that Garda Butler told Mr. RL that he would be performing the breath test from the Evidenser machine.
Garda Pychynski then left the custody area.
He said that at 01:31am Garda Butler came back to the custody area and advised him that the Evidenser machine was not working. The machine had “returned an error reading”.
At 01:32am Garda Pychysnki decided to call a designated nurse to attend the station for a blood or urine specimen.
Nurse Ryan arrived at 2:11am. Mr. RL subsequently provided a specimen of urine.
The reading was shown to be 171.
The legal limit is 67.
IN CROSS EXAMINATION Mr. Horan suggested that a speeding issue was what first drew Garda Pychynski’s attention to Mr. RL.
Garda Pychynski agreed.
Mr. Horan asked him what speed Mr. RL had been traveling at. Garda Pychynski did not know but believed it was above 50kph.
Mr. Horan asked Garda Pychynski about the Evidenser procedure. Garda Pychynski agreed that he was not there when the machine recorded at “error” reading.
He said that he had been told this later by Garda Butler.
He agreed that Garda Butler had not made a statement to this effect.
Mr. Horan asked whether Garda Butler was in court to give that evidence.
Garda Pychynski said that he was not.
IN HIS SUBMISSIONS to the court Mr. Horan said that he was seeking a dismissal of the charge.
He said that the court was faced with a situation where an unreasonable delay had occurred that had not been properly explained, as was required.
He said that the difference in time between the Evidenser machine apparently recording an ‘error’ reading and the nurse arriving "was 40 minutes".
Judge Alec Gabbett noted that Garda Butler was not in court to explain this delay. He said that he had no doubt that if Garda Butler were in court, the delay would be explained.
But he was not.
He repeated his view that he had previously expressed on other occasions, that any unreasonable delay in Garda custody needed to be explained “whether 40 minutes or 1 minute”.
He dismissed the drink driving prosecution.
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