Tullamore District Court heard man was over limit in parked car with engine running
AN “extremely intoxicated” man who was found asleep at the wheel of his parked car in Offaly escaped a driving ban on a technicality yesterday.
Mark Daly, 45, Millmount, Monasteroris, Edenderry, pleaded not guilty to being drunk in charge of a vehicle, with intent to attempt to drive it, when he appeared before Judge Catherine Staines at Tullamore District Court.
Garda Paul Linnane gave evidence that on April 17 last year when he was on patrol in the Edenderry area he received a call about a black Audi driving dangerously and erratically in the Rhode area.
He patrolled Rhode village and surrounding areas and in Clonmeen found a black Audi stopped outside a house on a grass verge.
The engine was running and the driver was asleep and it took loud knocking to wake him up.
Garda Linnane said when the man woke up his eyes were bloodshot and his pupils were small and when he asked him to open the window he opened the door instead and the guard immediately got a smell of alcohol.
The radio was on so loud he could not talk to the man properly and when he was asked to turn it down he fumbled with the door and the central console before finding the button.
Garda Linnane said he cautioned the man who fumbled again when asked to switch off the engine.
The driver said he had not been drinking or taking medication and he fumbled again when asked to produce his driving licence, having difficulty finding it in his wallet.
Mr Daly stumbled and fell back against the car when he was asked to get out and Garda Linnane said he formed the opinion the accused was incapable of having full and proper control of a mechanically propelled vehicle in a public place.
He arrested him under Section 5.10 of the Road Traffic Act on suspicion of being drunk in charge of a vehicle and told him he was being brought to Tullamore for a breath test. A breath specimen showed him to have 121 micrograms of alcohol per 100ml of breath.
Garda Linnane also said that when he was inputting details into the breath test apparatus in the station, the Evidenzer, he accidentally entered Section 4 of the Road Traffic Act instead of Section 5 and when he tried to correct it the machine would not allow him.
Martin Dully, BL, defending, applied for a direction from Judge Staines on the grounds that no evidence at all had been given by the guard that he had formed an opinion the accused intended to attempt to drive.
Mr Dully said a garda could only lawfully arrest someone under Section 5 if they suspected they had committed an offence and an ingredient of that offence is the belief the accused intended to drive the vehicle.
Sergeant James O'Sullivan, prosecuting, said it was clear when Garda Linnane came across the man with the radio on and the engine running that it was his opinion the accused intended to drive.
Mr Dully said that may well have been in his mind “but he didn't say it” when he was giving his evidence.
Judge Staines said the alleged offence before the court was not one of drink-driving, but one of being drunk in charge of a vehicle with the intent to drive it, or the intent to attempt to drive it. “There's plenty of supporting evidence, with the engine running, to support that, but you never gave that evidence,” she told Garda Linnane.
She said if the evidence had been given that it was the garda's opinion the man was incapable of having control of the vehicle and he also believed the accused had the intention to drive, that would have been supported by the fact that the engine was running.
“It was on oversight,” replied Garda Linnane and Judge Staines remarked that she was afraid such things happened all the time.
Addressing Mr Daly as she dismissed the charge, Judge Staines told him he was “clearly extremely intoxicated and thanks be to God, Garda Linnane stopped you”.
She told the man he could have killed somebody if he had carried on.
“This case is being dismissed on a technicality and I really hope you've learned your lesson from this and that you'll never drink and drive again.”