Barristers at Longford court argue drug testing devices not guaranteed to work when temperature dips below 5 degrees Celsius

Two defendants accused of drug-driving separately argued through their legal teams last week that  drug testing devices used on them were not guaranteed to work when temperatures dipped  below 5 degrees Celsius.

Conall O'Boyle of 71 Watervale, Roosky, county Roscommon and Alan Melvin of Cloonlast, Killucan, county Westmeath both pleaded not guilty to drug driving.

Gardaí have had the power to test the oral fluid of drivers at the roadside or in a Garda station since April 2017.

The Drager 5000 machines are designed to detect motorists  high on illicit drugs such as cannabis, cocaine and heroin.

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Garda Sergeant Paul Stuart said he was on patrol on the Battery Rd, Longford on February 4, 2022 when he drove behind the defendant, Mr O'Boyle in a Vauxhall Vectra who was turning right towards Lisbrack Road.

The officer stated due to the 'accumulation of dirt' on the rear registration plate he decided to pull the defendant over and he spoke to him and requested his driving licence.

A full Irish driving licence was produced to him.

Sgt Stuart also spoke to Mr O'Boyle about the illegible licence plate.

"He informed me he was on his way to get his car washed as he had an NCT later that day," he added.

Sgt Stuart said he believed the defendant's eyes were bloodshot, his pupils were dilated and he was pale in complexion and he  formed the opinion he had consumed an intoxicant'.

Sgt Stuart then  conducted an oral fluid preliminary drug test which led to a 'positive' result.

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Mr O'Boyle was subsequently arrested and a blood specimen was obtained by a doctor and the result was deemed to be 'positive for drugs' and it exceeded the drug-driving limit.

Barrister Martin Dully said he found it curious it took Sgt Stuart ten minutes to check his clients insurance, tax, NCT and tyres.

The legal representative asked if "there was something on the Pulse system that indicated he should be subject to an oral fluid test", which Sgt Stuart strongly denied.

Mr Dully asked what training or instructions Sgt Stuart had received and he outlined that they received instructions online and watched a training video where an instructor guided them on how to use the new device.

Mr Dully said online testing instructions for the Drager 5000 drug tester device  stated it should be used in temperatures ranging from +5 degrees Celsius to +40 degrees Celsius.

"[It says] make sure that the ambient temperature is between +5 degrees Celsius to +40 degrees Celsius and the relative humidity is between 5% and 95% relative humidity.

"In that regard you are told to make sure the test cartridges are at ambient temperature, wait for 15 minutes to achieve the [correct] temperature if necessary.

"They are not guidelines, they are instructions, isn't that correct," he added.

Sgt Stuart said he had no device or tool available to monitor the temperature apart from the thermometer in the car.

Mr Dully then asked Sgt Stuart if he agreed there was a 'defect' in his training?

Sgt Stuart replied that he 'could not say' whether that was the case.

Mr Dully said he presumed the court could not accept in the absence of any evidence that the temperature was incapable of being below 5 degrees Celsius at 11.30am in the morning.

"It might be satisfied there is no possibility the temperature could have exceeded 40C, I would agree with that proposition, but on the particular facts of this case and in view of the sergeant's evidence and the date in question the court can't be satisfied," he added.

Inspector David Jordan said Sgt Stuart informed Mr O'Boyle he was testing him for drugs and at no stage was the defendant not aware of the reason for his arrest before he spoke about the Drager 500 drug testing device and the temperature issue.

"Sgt Stuart quite correctly said it is guidelines, it's not in legislation, he was not trained in relation to it, he was given no implement to get the temperature.

"If he taken the temperature from the car I'm sure we would have had a whole new area opened up as to that is not a proper implement for the temperature," he added.

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Insp Jordan said the defence were trying to bring in something that has 'not been there in previous years'.

The case involving Mr Melvin was also before Judge Bernadette Owens.

In his evidence,  Garda Edward Flanagan said he was conducting a speed check in the Tarmonbarry area on January 18, 2023 at 1.15pm and he detected the defendant travelling at 82kph in a 60kph zone.

The officer said he pursued the motorist and he stopped him at Cloondara, Longford a short time later.

Garda Flanagan said he noticed his eye pupils had a 'narrow', unusual appearance  and he made a requirement for him to undergo an oral fluid test, which tested positive for drugs.

The court heard Mr Melvin was arrested at 1.35pm and a blood specimen was obtained by a doctor which had a  'positive' reading for drugs and it exceeded the drug-driving limit.

Garda Flanagan fixed charge penalty notice fine for the speeding offence was issued and it was paid.

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Barrister David Staunton highlighted similar arguments about the directions of use and the temperature range for the drug testing device.

"What has happened here is that the inspector is suggesting that no-one told us we had to do this, therefore that effectively provides cover and to suggest there is no consequence.

"Who's fault is that I ask rhetorically. 

"The one person whose fault it is not is Mr Melvin," he added.

Judge Bernadette Owens said she would have to consider the submissions and she decided to adjourn the cases until May 27 next for a decision.

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