Louisburgh man fails to have case thrown out of court

A West Mayo man has failed in his bid to have a prosecution for drunk driving thrown out of court. 

Gerard O’Malley, aged 57, of Six Noggins, Louisburgh, pleaded not guilty at Castlebar District Court to drink driving on September 26, 2022.

Gda Leanne Nallen told the court that she was traveling through Louisburgh in the direction of Silver Strand at around 1.22am on the date in question when a black Nissan Qashqai drove out in front of her in an erratic manner.

She slammed on the brakes to prevent a collision and followed the vehicle for about 1km, during which it swerved over the white line on numerous occasions and onto the grass verges. Gda Nallen activated the blue lights and siren on the patrol car and beckoned the driver of the vehicle to pull over.

She spoke to the driver, Gerard O’Malley, and got a smell of intoxicating liquor from his breath. She formed the opinion he had consumed an intoxicant and conducted a roadside breath test, which proved positive for alcohol. O'Malley was arrested and taken to Westport Garda Station where he provided a blood sample to a doctor. The sample later gave a reading of 150mg of alcohol per 100ml of blood. The legal limit is 50mg.

Defending solicitor Evan O’Dwyer said Gda Nallen had stated in evidence that she arrested the defendant "under Section 9 of the Road Traffic Act". However, his client did not commit an offence under this section of the Act. Mr O’Dwyer argued that an arrest must be predicated on the offence committed and if it was not, it would "condemn the arrest and everything that took place following it".

The solicitor said Gda Nallen also failed to refer to the doctor as a "designated" doctor in her direct evidence and this is essential to the process of taking the blood sample.

In response, Gda Insp Maria Hayes said there was no issue with Gda Nallen invoking the incorrect section of the Road Traffic Act. O’Malley had been informed in ordinary language that he was being arrested for drunk driving by Gda Nallen and case law shows that the only requirement is that the defendant has knowledge of their crime and, therefore, the arrest in this case remained valid.

Insp Hayes added that under Section 20, subsection 4 of the Road Traffic Act, there is a presumption of designation until the contrary is proven. She added that Gda Nallen did use the word "designated" in her direct evidence.

After reviewing the Digital Audio Recording (DAR) of the court proceedings to confirm that Gda Nallen used the word "designated", judge Fiona Lydon said she was satisfied the State had proven its case. The defendant has no previous convictions.

The judge imposed a two-year driving disqualification and a fine of €1,000.