Drunk-in-charge case dismissed against Mayo motorist who drove into ditch

A MAN who was found in the driving seat of his car with the lights on and the engine still running had a charge of being drunk-in-charge of the vehicle dismissed at Castlebar District Court.

Gordon Shephard, Bohane, Killawalla, appeared before Judge Sandra Murphy at Castlebar District Court where a number of procedural points in relation to the arrest and charging of the defendant came in for scrutiny by the defendant’s solicitor, Mr. Gary Mulchrone.

Central to the argument by the defence in seeking a dismissal of the case was whether the defendant had been offered the option of providing a blood sample, having failed to provide a urine sample despite two attempts while in custody.

Garda Sinead O’Malley told the court she was on patrol duty on November 9, 2024, when she received a report of a single-vehicle accident at Deerpark, Aghagower, near Westport, at 11.20 p.m.

Garda O’Malley said she was on patrol close to the accident scene and was there in a few minutes where she encountered a van that had crashed into a ditch.

The engine was running and the car lights were still on.

She said she spoke to the driver who gave his name as Gordon Shephard, who was sitting in the driver’s seat.

“I got a smell of alcohol from him and his speech was slurred and from that I formed the opinion he was incapable of having control over a mechanically-propelled vehicle so I arrested him for being drunk-in charge of a vehicle at 11.30 p.m.,” said Garda O’Malley.

She added: “The driver said he had a few drinks and should not have driven home.”

The defendant was taken to Westport Garda Station where a nurse was called at 12.35 a.m.

The defendant was taken into the doctor’s room and had been brought to the cubicle to provide a sample of urine. He was accompanied by Gara Shane Nallen who was the duty officer in the station.

The defendant had failed to prove a sample when he attempted first.

Garda O’Malley said the defendant had gone to the toilet some 10 minutes before the nurse arrived.

She offered the defendant a second opportunity to give a urine sample and gave him eight glasses of water, which he consumed.

Again he was taken to the doctor’s room by Garda Nallen but for the second time failed to provide a urine sample.

Garda O’Malley said the defendant had become obstreperous at this point and she had no doubt in her mind that he was going to provide a sample.

She pointed out the consequences of failing or refusing to provide a sample.

In cross-examination, Mr. Mulchrone asked Garda O’Malley why his client was not offered the opportunity to provide a sample of blood, given that he was unable to provide urine.

Garda O’Malley said she initially requested the defendant to provide a sample of blood or urine and he opted for urine.

She said after he had failed to provide the first sample of urine she was only giving the defendant a second chance as she knew a refusal could have serious consequences for the defendant.

Again, Mr. Mulchrone said would it not have been more prudent to ask him to provide a blood sample seeing he couldn’t provide urine.

Garda O’Malley repeated the fact that he had opted for urine when he was asked at the beginning of the procedure when the nurse arrived if he would provide a blood or urine sample.

Mr. Mulchrone also said that while Garda Nallen had made a statement, which was in court, he had not been brought as a witness, which meant there was an evidential gap in the procedure in attempting to get a urine sample from his client.

Mr. Mulchrone said he felt it was important that what went on with Garda Nallen, who was with this client when he was asked to provide the urine sample, was a very important part of the chain of evidence as he might be able to shed some light on how the procedure was carried out, not once but twice as it was Garda Nallen and not the arresting officer, Garda O’Malley, who was involved in attempting to procure the urine sample from his client.

The solicitor also said while the defendant was sitting in his car when Garda O’Malley arrived, there was no evidence to suggest that he had intended to drive the vehicle which was also part of the charge before the court.

Mr. Mulchrone sought a dismissal of the charge on a number of issues in relation to the State’s evidence, but in particular to a request to the defendant to provide a blood or urine sample, which he felt had not been made clear, in the evidence given in court.

It was Mr. Mulchrone’s argument that he should have been asked to provide a blood sample after failing to provide urine and he further argued that the arresting garda had made no mention of asking of his client for a blood or urine sample in her oral evidence in court.

“There was clearly an evidential gap between the attempt of Garda Nallen to get two urine samples from my client,” said Mr. Mulchrone, who said, in his view, the station officer, Garda Nallen, should be in court for cross-examination.

Inspector Shane Fitzmaurice, prosecuting, said Garda O’Malley had been clear that when she had initially asked the defendant to provide a blood or urine sample, he had clearly indicated urine.

Judge Sandra Murphy said she fully accepted Garda O’Malley was correct on three of the points Mr. Mulchrone had questioned.

But she did agree with him on point number four, which related to the ‘evidential gap’ and she wondered why Garda Nallen had not been brought as a State witness.

It was on this moot point that she felt she had to dismiss the charge, Judge Murphy told the court.

* Funded by the Courts Reporting Scheme.