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Questions surround legality of allowing drink driver to use toilet

Questions surround legality of observing drink driver

A DISTRICT Court Judge has asked for more time to consider legal argument in a drink driving case after a garda allowed a prisoner to go to the toilet while he was under observation before giving a breath sample.
Judge Mary Devins said it was the first time she came across such an incident in court and said she would like to consider if the procedure complied with the legislation. Mr Patrick O’Brien of Mill Park, Cornamona, Co Galway was arrested for drink driving by Garda Damien Hennigan on February 27, 2011 at Kilbride Finney, Claremorris.
Mr O’Brien was brought to Castlebar Garda Station and a specimen of his breath showed a concentration of 38 microgrammes of alcohol per 100ml of breath.
The court heard that before a breath sample is given, the garda must observe the prisoner for 20 minutes to ensure he does not consume anything by mouth or regurgitates and ensure the breath sample is not contaminated.
Garda Hennigan explained that during the 20 minute observation, Mr O’Brien asked to go to the toilet and he accompanied him. Under questioning from Ms Cathy McDarby, solicitor for the defendant he said he was 100 per cent sure he observed him at all times and the integrity of the sample was preserved. He felt there was no need to restart the 20 minute period of observation.
However, Ms McDarby asked for a direction by arguing that the 20 minute period of observation was not complied with in full. She argued that Garda Hennigan was not able to look directly at Mr O’Brien and could not be sure he had not regurgitated alcohol.
Judge Devins adjourned the case until November 25