Borrisokane motorist allegedly drinking from beer can while driving has case dismissed

A motorist who was allegedly drinking from a beer can while driving had a charge of drink driving against him struck out at Nenagh District Court because the arresting garda did not allow the appropriate time delay before breath testing the defendant.

Eddie O’Connell, 66, of Apt 1 Ballyfin House, Borrisokane, had pleaded not guilty to drink driving at Main Street, Borrisokane, on July 7, 2020.

Garda Mary Cuthbert gave evidence that she had received a phone call from a member of the public to Nenagh Garda station at 7.25pm to say that there was a driver who was suspected of drinking and driving between Nenagh and Borrisokane.

She immediately alerted Garda Avril Clarke in Borrisokane Garda station about the call.

Garda Clarke told the court that she stepped out of the station and a car pulled up in which a lady told her it was she who had made the call. The lady said the car was now coming along Main Street, Borrisokane.

Garda Clarke said that she stepped on to the street and indicated to the driver to stop, but the driver waved his hand over the steering wheel at her, which she took to be an indication to get out of his way.

However, she remained in place and waited until the vehicle stopped.

Garda Clarke said that she approached the driver’s window and spoke to Mr O’Connell.

“His eyes were glazed and there was a smell of alcohol from his breath and from the vehicle,” she said.

The garda said she asked Mr O’Connell for his driving licence but he had some difficulty retrieving it from his back pocket as the pocket button was closed and he seemed unaware of this.

She asked Mr O’Connell to step out of the vehicle and he was unsteady on his feet, she said.

Garda Clarke said she carried out a roadside breath test which showed Fail and arrested Mr O’Connell on suspicion of drink driving at 7.35pm following which he had made a comment to the effect of “I’m done for now”.

He was subsequently taken to Templemore Garda station.

Garda Clarke said her decision to stop the vehicle had been based on the phone call from Garda Cuthbert who had told her that the lady who had made the original call had said the driver had been observed driving while drinking from a beer can.

Garda Clarke said that Mr O’Connell had later told her that he drank and drove because “it calms me down”.

He had told her his last drink was 20 minutes previous to her stopping him, she said.

Cross-examined by Kenny Kerins, BL, for Mr O’Connell, Garda Clarke said she had formed her opinion that the driver had been drinking based on the knowledge she had received about a suspected drink driver who was drinking from a beer can.

Garda Garret Ryan told the court that a call had come through at 7.25pm and he had brought the patrol car around to Main Street while Garda Clarke had stepped out on to the street.

A subsequent test showed that Mr O’Connell had 47mgs of alcohol per 100mls of breath.

Mr Kerins submitted that there was no evidence that his client had been granted the 20-minute observation period ahead of the test to ensure the test complied with the regulations that he had not drank alcohol within that period.

He submitted this could render the test inaccurate.

Judge Paul O’Kelly, president of the District Court, agreed with Mr Kerins’s submission and dismissed the charge.