A lorry driver who spent six and a half hours in the pub with his wife after watching the Munster-Leinster Heineken Cup semi-final last year, and was then arrested after he chose to drive less than a kilometre to his house because it was raining, had his two year and one day District Court driving ban upheld in the Circuit Court in Athlone this week (December 8 ).
If the appellant, Patrick McDonagh (50 ), Station Road, Castletown Geoghegan, Co Westmeath, had pleaded guilty at the first possible opportunity and his ban had been backdated to the date of the offence, he would be back driving today as, in the case of a two year and one day ban, a person can apply for restoration of the driving licence after one year.
Garda Keith Harrison gave evidence that he had been driving through the village of Castletown Geoghegan at around 9.30pm on May 2, 2009 when he noted a car “making several attempts back and forth” to exit a parking space outside a pub.
Garda Harrison approached the driver, formed an opinion as to his sobriety, and when the driver failed the roadside breath test, arrested him and took him to Athlone Garda Station where he produced an intoxiliser reading of 47 microgrammes per 100 millilitres of breath.
Barrister Ms Alexis Mina for McDonagh, based her defence on the evidence of her client and his wife, that neither had any recollection of Garda Harrison offering the roadside breath test, and that the garda had made no mention of this in his notebook on the night in question, only referring to it in his official statement written up three weeks later.
In her evidence to the court, Susan McDonagh was “100 per cent sure he [her husband] wasn’t breathalysed”, and that in the six and a half hours they were in the pub she had “one [Bacardi] Breezer” and that her husband had “two and a half or three pints”. Both Mrs McDonagh and her husband gave evidence that McDonagh had been arrested without Garda Harrison making any preliminary enquiries.
Garda Harrison said he formed his opinion about McDonagh’s ability to drive on four parameters: his driving, his speech, the smell of alcohol, and the roadside breath test. He attested to making 62 such arrests in 2009.
Ms Mina appealed to Judge Anthony Kennedy to give the benefit of the doubt to her client.
“It was on this roadside breath test that this arrest was based and this test did not take place. I accept there is a conflict of evidence but the State has to prove the situation beyond reasonable doubt,” she said.
State solicitor, Peter D Jones pointed out to the court that “a roadside test is not mandatory but is a guide”.
Judge Kennedy noted the “very serious conflict of evidence” and that the “challenge to Garda Harrison’s evidence is that he was incompetent and fabricated evidence”.
“I have never before come across a situation where an experienced garda would arbitrarily arrest a person without preliminary enquiries,” said the judge.
“Mr McDonagh clearly had alcohol on him as proven by the subsequent intoxiliser test [at the garda station],” he continued.
“I find for Garda Harrison and I’m satisfied his opinion was properly formed. I’m going to affirm the District Court conviction.”
McDonagh was banned from driving for two years and one day from Wednesday, but had his fine reduced from €1,000 to €250 because he is now unemployed.
