Arrest was lawful in drink driving case says Judge

At a special sitting of Ballyshannon District Court on Monday, Martin Treacy (60) of 20 Millpark Apartments, Donegal Town was disqualified from driving for a period of three years after he was convicted on a drink driving charge.

The court heard from three different garda witnesses which related to the defendant's arrest and detention following the stopping of his vehicle at Tullygallan, Donegal on July 21, 2021.

A later reading indicated that he had 67 microgrammes of alcohol per 100 millilitres of breath contrary to section 4(4) (a) and 5 of the Road Traffic Act 2010.

He was also fined €300 with recognisance being fixed in the event of an appeal.

Defendant was represented by barrister Liam O’Connell with instructions from Ian McKenna of O'Donnell McKenna solicitors, who asked that the garda witnesses give their evidence without the other gardaí being present.

Garda Michael Connolly gave evidence of the lead up to the arrest. He had been on patrol and received a report about a Silver Ford transit van that was on the N15 and was driving in the Donegal Town direction. It was stopped just before the Tullyearl roundabout where he spoke to the driver.

He said that there was a smell of intoxicant from the defendant and that his speech was slurred. He asked the defendant if he had been drinking to which the defendant had replied six pints.

He formed the opinion that the defendant was in breach of the regulations and was arrested. He said that the defendant was unsteady on his feet getting into the patrol van which took him back to Ballyshannon.

He gave evidence of the procedures he undertook back at the station and that the defendant had been searched and that Sgt Ciaran McDermott had conducted a period of observation of 20 minutes in that period. Defendant was later charged.

Cross examined by Mr O’Connell he was asked on what basis did he form an opinion that the defendant was under the influence of an intoxicant.

He repeated his comments about the state of the defendant and the initial manner of his driving but denied that this had only come about “forming an opinion” after the defendant had stated that he had consumed six pints.

Defending barrister said that the garda arrest was on foot of the admissions that his client had responded to the question. Garda replied that the defendant swaying left and right on the road, the smell of an intoxicant, the behaviour of the defendant and his slurred speech all lead to his forming the opinion that he was in breach of the road traffic act.

If this was the case why did he ask the question about having a drink consumed in advance of his arrest.

“Instead of cautioning him, you asked him a direct question,” the defending barrister said.

Mr O’Connell suggested that the garda was asking him the question, as he was still forming his opinion and added why would he have asked the question, before cautioning the defendant, if all the information was already there to arrest his client.

The garda replied that he was unsure, with Mr O’Connell suggesting that he was in breach of both ‘Judges’ Rules’ and was unfair within the context of the arrest. He also queried a four minute gap between the garda “forming the opinion” and his arrest.

Garda Connolly also gave evidence of being satisfied that the defendant did not consume alcohol and had ‘nil by mouth’ at any stage during his interaction with the defendant.

Next to the stand was Sgt McDermott from Killyegs who was the initial van driver to the station.

He had received a call about a suspected drink driver and he drove to the townland at Tullygallan, where Gda Connolly informed him that he had arrested the defendant on suspicion of drink driving.

He gave evidence of the procedures that followed and was cross examined at length by the barrister as to what he had observed at the garda station, including his introduction of the defendant to the member in charge at the station, Gda Darren Norman.

Gda Norman also gave evidence of the sequence of events of the night, from his perspective.

Cross examined by Mr O’Connell he said that he had arrived at 12.30am and brought the defendant into the custody area, where the custody record was opened. Sgt McDermott said that he believed that he went away for a few minutes, as was his normal procedure to make some notes.

He said that the defendant had nothing to drink or smoke and there was no evidence of any food being consumed in the period that the Sergeant had the defendant under observation and before that the defendant was being processed.

It was two years ago since the date of the arrest.

After lunch, Mr O’Connell said that he was looking for a direction from the Judge on two issues.

One was the lawfulness of the arrest and the guard asking his client a direct question before his caution and arrest and he said that it can only be the case that it was following the admission by the defendant to the Garda that crystalised his opinion whether he was committing an offence.

He said that was why the ‘Judges’ Rules,’ a minimum fairness and that this admission was reached in breach of the Judges’ rules. He said that his client’s detention was unlawful, even at a basic level.

In his cross examinations he was anxious to establish that there was no possibility that his client could have consumed or eaten anything.

He said that, in direct evidence, Gda Connolly said that in his recollection, Sgt McDermott had been there the whole time, and that the defence maintained there were differences between two conflicting garda witnesses.

His second point in seeking a direction related to the amount of time that his client had been detained.

He said that the gardaí would have been satisfied that his client had been under observation by 12.55pm on the date in question, but that there was no need for what he described as a “separate period of observation.”

He said that his client’s “detention was unlawful” and information had been garnered “in breach of the normal standards of fairness.”

He added that the gardai had extended the period of detention even though they knew he had taken nil by mouth.

In rebuttal Inspector Pat Harney said that there had been clear direct evidence of what Gda Connolly had based his decision to arrest the defendant. He said that the observation of the defendant at the garda station had been carried out in a controlled environment and there had been no unreasonable detention and the circumstances of that had not prejudiced in any way.

He said that the 20 minute period of observation commences at a reasonable time after being processed. Even if that were the case, not every delay in such circumstances is unreasonable.

Mr O’Connell said that it was “very clear and inescapable” that his client’s arrest only occurred after a direct answer and that the Garda could not provide any reasonable answer.

It “must have been made in awareness of the question’s answer.”

While there was no suggestion that the period of observation was in a controlled environment, it is a provision that must be followed properly

Judge Brendan O’Reilly said that while Judges’ Rules are very important for the protection of the Judicial system, they cannot be taken in isolation. He was satisfied that Garda Connolly had formed the opinion from his observations and not the direct question.

On the 20 minute observation period, these matters were refined and distinguished in subsequent cases, from cases cited by the Defence and he again was satisfied that the defendant’s rights were not breached,

At this juncture, defence said that they would not be going into evidence and that his client, who was 60, had no previous convictions and was a considerable employer, involved in construction and property management.

His driving on the night was not an excuse but he had been driving home as there was an illness in the family. He had a previous good record and was an outstanding member of the community.

He added that he accepted the penalty would be harsh but that the pressures of life had taken their toll and that his client had accepted that he had been foolish, his client had no other matters pending and it had been a singular incident in his life, which still left his full character intact.

Defendant was fined €300 on the drink driving charge, was disqualified for three years and had his licence endorsed. Recognisance in the event of an appeal was also granted by Judge O’ Reilly.