A MAN WHO WAS arrested for drink driving and was verbally abusive to Gardai in custody was acquitted of a drink driving offence at Killarney District Court on 4 November 2024.
The case initially came before Killarney District Court on 7 October 2024.
Mr KP was charged with failing to provide a specimen in custody. He was also charged with careless driving. He was represented by Patrick Horan.
At the outset, Mr Horan advised the court that Mr KP was pleading guilty to the charge of careless driving.
The court then proceeded to hear the other charge of failing to provide a specimen.
“KP became uncooperative with both
nurse and Gardai,
became aggressive and
shouted ‘fucking cunts’”
GARDA DM THEN gave evidence.
He said that on 28 May 2023 he was on patrol car duty on Main Street, Killarney. At about 2:23am he saw a silver Audi A4 “which had stalled”.
There were a “hundreds of pedestrians” present “left and right” as the vehicle proceeded up the street. Garda DM noted that the vehicle “was veering left and right all the way”.
Garda DM decided to stop the vehicle, and it pulled over at High Street.
Garda DM spoke to the driver, Mr KP who handed Garda DM his driver’s licence.
Garda DM noted that Mr KP had “slurred speech and a strong smell of alcohol from his breath and he had glassy eyes”.
Garda DM formed the opinion that Mr KP was incapable of having proper control of the vehicle while it was in a public place.
At 2:30am he arrested Mr KP.
"Garda DM said that
“KP would not provide the specimen.
I gave him the option of providing a blood specimen.
He refused”.
Mr KP was cautioned and arrived at Killarney Garda Station at 2:55am.
Mr KP was introduced to the Garda member in charge who read him his rights.
Garda DM said that Mr KP “became uncooperative and refused to answer any questions”. He was placed in the cell.
A designated nurse was called, and she arrived at 3:53am.
At 3:54am Mr KP was taken from the cell to meet the designated nurse.
Garda DM stated that at 3:56am he “made a requirement of him to permit the designated nurse to take from him a specimen of his blood or at his option to provide for the designated nurse a specimen of his urine”.
Mr KP was told that “a failure or refusal to comply with the requirement was an offence punishable by a fine of up to €5,000 or a maximum of 6 months imprisonment and also a 4-year disqualification from driving if convicted for first offence or 6 years for second or subsequent offence”.
Garda DM said that Mr KP understood “and opted to provide the urine specimen”.
Garda DM handed the designated nurse a sealed box “containing the equipment for taking urine” as well as a “sealed jug”.
The nurse opened the box to ensure that everything was in order and “gave instructions to KP on how to provide a specimen of urine”.
Garda DM then said “KP became uncooperative with both nurse and Gardai, became aggressive and shouted ‘fucking cunts’”.
Garda DM said that “KP would not provide the specimen. I gave him the option of providing a blood specimen. He refused”.
Mr KP was placed back in the cell and later charged with “refusing to comply with the requirement” [to provide a specimen of urine].
He was then released from custody.
If convicted Mr KP would have been disqualified from driving for 4 years.
IN CROSS-EXAMINATION Mr Horan suggested to Garda DM that Mr KP had been cooperative at the scene, at the point of arrest.
Garda DM agreed that at this time he was cooperative.
It was suggested to him that Mr KP had made an effort to provide urine but simply could not do it. These were Mr KP’s instructions.
Garda DM disagreed. He stated that Mr KP had made no effort to provide urine.
Mr Horan turned what Garda DM had said in evidence.
He put it to Garda DM that when Mr KP failed to provide the urine specimen that he had given Mr KP “the option of providing blood”.
He asked Garda DM whether this was the case.
Garda DM agreed that it was.
_________________________
AT THE CLOSE OF the prosecution case Mr Horan on behalf of Mr KP advanced legal arguments arguing that the prosecution case of failing to provide a specimen was flawed.
He outlined the authoritative case law from both the High Court and Supreme Court in support of Mr KP.
After careful consideration Judge Waters decided to adjourn the case to 4 November to examine the caselaw in this area.
On 4 November 2024 Judge Waters agreed that the case against Mr KP for failing to provide a specimen was flawed.
He dismissed the charge.
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