A MAN WHO CRASHED his car and was found to be more than 4 times over the limit was acquitted after a specimen of urine was unlawfully provided by him.
Mr J was charged with the offence of drunk in charge. The allegation before the court was that he was found in charge of a vehicle with the intent to drive it. The offence was alleged to have occurred on 4 March 2023 at Deerpark, Dundrum, Co. Tipperary.
Mr J was represented in court by his legal team, Mr Kenneth Kerins BL and Mr Patrick Horan Solicitor.
The case came before Nenagh District Court on 22 January 2024.
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Garda H gave evidence that on 4 March 2023 he was on duty when he received a call “that a car had mounted the ditch at Deerpark, Dundrum, Co. Tipperary”. The time was about 9:55pm.
“The doctor made two attempts to obtain blood.
Through no fault of his [Mr J] own he couldn’t get a blood sample”.
“When the doctor said he couldn’t get blood
I made a demand for to provide urine”.
Garda H went to the scene and saw a black vehicle “mounted on the ditch, balanced on the ditch”. He admitted that he “first noticed the vehicles wheels were off the ground. All the wheels were still moving… [as the vehicle had] an automatic gearbox”.
He said that he spoke to a woman at the scene Miss K who had “observed a male leaving the driver’s seat and had gone across the road and fallen into a ditch”.
Garda H “proceeded to the ditch and observed a male Mr J”. He said, “from observing him he was asleep…in a hedge”. He said that Mr J “had to be assisted standing up”.
He observed that “it was immediately apparent that this male was under the influence of an intoxicant. His front was covered in vomit. I could smell alcohol from his breath, and he could not stand unassisted”.
Garda H said that Mr J was “slurring his words” and that he deemed him “incapable of being in charge of a vehicle in a public place”.
At 10:35pm he arrested him and told him that “although he was not driving” it was his belief that “he had the intention to drive”. Mr J was taken to Tipperary Garda Station.
He was given his rights and told that a doctor would be called “to obtain blood or urine”. The doctor arrived very quickly to the station.
Mr J was taken to the doctor’s room and was introduced to the doctor. Garda H made a requirement of Mr J to permit the designated doctor to take a specimen of his blood from him or if he chose, he could provide a specimen of urine.
The penalties for failing or refusing to comply were explained to Mr J. They included a possible €5000 fine, 6 months’ imprisonment and a 4-year disqualification from driving.
Mr J opted to allow the doctor to take a specimen of his blood.
Then Garda H said:
“The doctor made two attempts to obtain blood. Through no fault of his [Mr J] own he couldn’t get a blood sample”.
“When the doctor said he couldn’t get blood I made a demand for to provide urine”.
Garda H said that Mr J provided urine. The specimen was divided into two separate containers and Mr J was offered the choice to take either of the specimens away to have interpedently analysed. He took one. The remaining specimen of blood was “placed in the original cardboard box along with the doctor’s certificate and sealed”
All of this was done in Mr J’s presence.
Mr J was then released, and the specimen of blood was sent to the Medical Bureau of Road Safety. Garda H later received a certificate of analysis from the Bureau showing “a concentration of 288 milligrams of alcohol per 100 millilitres of urine”.
The legal limit is 67mgs of alcohol.
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Garda H was now asked a series of questions by the prosecuting Inspector.
Inspector: “What time did you get called?”
“About 9:55pm”
Where did you go?
“Deerpark, [Dundrum, Co. Tipperary]”.
“You met Miss K?”
“Yes. She observed the driver in the driver’s seat, get out, stagger across the road and fall into the ditch”.
Judge: “What time did you get the call?”
“9:55am. Judge”
“From Miss K?”
“No Judge. it was a 999 call”.
Inspector: “How close was the Defendant to the vehicle?”
“It’s not a wide road, it’s a country road. About 10-15 feet”.
“The vehicle was ‘beached’?”
“Correct. The vehicle was balanced [on the ditch]. The wheels were still moving”.
“Obviously, you were aware of Mr J?”
“I assisted him with his standing. There was vomit on his shirt. He was slurring his words”.
“Your view was formed?”
“Yes, that he was incapable of having proper control of a mechanically propelled vehicle in a public place.”
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Mr Kenneth Kerins BL on behalf of the defence now began his cross examination.
“When you looked around, he [Mr J] was away from the vehicle?”
“Correct.”
“He left the car. It was ‘beached’. Was it capable of being driven?”
“It was mounted [on the ditch]. It was a 4-wheel drive vehicle. It would be difficult to remove it from that position.”
“It couldn’t be driven?”
“It would be difficult to drive it off.”
“He had left?”
“He was across the road in the ditch.”
“What opinion did you form regarding an intent to drive?”
“I presumed he intended to drive it to go home. That was the opinion that I formed, that he intended to drive home.”
“But at that stage?” [i.e. at the point where Garda H encountered Mr J lying in the ditch].
“If we didn’t intervene, he could take it from the position it was beached.”
MR. KERINS NOW TURNED his questioning to events later in the station.
“The doctor arrived?”
“Correct.”
“And a demand was made for him to permit blood be taken or at his option to provide urine?”
“Correct.”
“The doctor took some blood?”
“The needle was put in but it wasn’t enough.”
“Who made the decision?” [i.e. that not enough blood had been taken]
“The doctor.”
“What happened this sample?” [of blood that was taken]
“It was placed in a biohazard bag and put in the bin.”
“Who made that decision? The doctor?”
“I think it was yes.”
“What was enough?”
“The doctor said, “very minute”.
“Between you and the doctor you said it was not enough?”
“Yes.”
“The blood that was taken was placed in the bin and you made a demand for urine? On what basis?”
“We needed to obtain a sample.”
“He opted for blood?”
“Yes.”
“Did the doctor make a statement?” [that he could not obtain a sufficient amount of blood]
“No.”
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The witness Miss K then gave evidence.
Inspector: “Do you recall coming upon the vehicle?”
Miss K: “Yes. It was up on the embankment.”
“Did you interact with the driver?”
“No.”
“Did you call anyone?”
“I rang the Gardai at 10pm. I told them that the car was on the embankment with the wheels in the air.”
The Inspector thanked Miss K.
“I assisted him with his standing.
There was vomit on his shirt.
He was slurring his words”.
Mr Kerins BL now spoke.
“Did you observe the driver get out and leave?”
“Yes.”
“Did you form a view of what he intended?”
“No. He crossed the road.”
The State’s case was concluded and closed at this point.
Mr Kerins on behalf of Mr J now addressed the court.
He was seeking a direction from the court of “no case to answer”.
“Blood” he said “is placed on a higher level than urine. The evidence had shown that he had opted for blood and some blood had in fact been taken but later discarded.”
Mr Kerins then referred to the law on this matter.
He said that the legal requirement was to provide blood, but it could be discharged if the motorist opted to provide urine.
He referred to the Supreme Court case of Coughlan v Swan. He referred to decision of Mr Justice Lavan who had corrected a misinterpretation of the law.
He said that the requirement to provide urine did not become obligatory if, through no fault of the motorist, a blood specimen could not be taken by the doctor or nurse.
Mr Kerins quoted Mr David Staunton’s book Drunken Driving dealing with the case:
“He [Mr Justice Lavan] held that the Garda was in error in suggesting to the accused that he had such a legal obligation and, accordingly, the specimen of urine given by the accused was not given with his free election… [under law]. Consequently, the evidence of the resulting analysis was inadmissible”.
He said that in the High Court case of Brendan Corcoran the court again had to deal with the issue of failure to provide a sample. Mr Corcoran had opted to provide blood, but despite his full cooperation a specimen of blood could not be taken. At this point the Garda “reminded” the motorist of his option to provide urine, and he did so.
[NOTE: in some cases, a doctor or nurse may be unable to find or locate a blood vessel].
Mr Kerins pointed out that in Brendan Corcoran the motorist had argued that the primary requirement in law was for blood, the option was for urine.
Once the motorist had opted to provide blood and through no fault of his blood could not be taken, his obligation under law was complete.
In other words, Mr Kerins said, he was not obligated to now provide urine. The Garda’s suggestion to the motorist that he was now obliged to provide urine “was unlawful”, unless it was accompanied by a letter signed by the doctor or nurse stating that they could not obtain a blood sample.
As the specimen of urine had been taken in breach of the law, the Defence were seeking to have the drink driving case dismissed against Mr J.
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THE COURT NOTED that it “did not have evidence of how blood was taken”. It also pointed out that “a second sample was taken… [and that there was] a requirement for the doctor’s letter…[and that there had been] no certificate signed”.
Needing time to examine the evidence as well as the law in this area, the court adjourned the case to 6 March 2024.
On 6 March the court returned to Mr J’s case.
It stated that if a person elected to provide a specimen of blood but through no fault of their own, they could not provide one, then “if the doctor or nurse stated in writing that they were unwilling on medical grounds to take the specimen, then the member [of the Gardai] may make a demand for urine.”
“In the event that the note from the doctor in writing [was present] it would allow a specimen of urine to be taken”.
“[The State] needed to have the note, and this wasn’t done. The specimen of urine was unlawfully taken”.
The court stated that the drink driving charge had to be dismissed.
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