Defendant says he was not tested legitimately, Longford court hears via solicitor

A defendant accused of drug-driving in county Longford who appeared before the local district court and argued through his solicitors he was not tested legitimately, have had their cases dismissed.

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

The legal representative for Mr O'Boyle informed Judge Bernadette Owens the Drager 5000 drug testing device directions stated it does not work effectively below 4 degrees Celsius or over 40 degrees Celsius and there was no definitive evidence of the temperature on the day.

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At a previous hearing in April, 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 an 'accumulation of dirt' on the rear registration plate he decided to pull the defendant over who stated he was on his way to get his car washed as he had an NCT later that day," he added.

Sgt Stuart said the defendant's eyes were bloodshot, his pupils were dilated and he was pale and the officer suspected he had consumed an intoxicant'.

An oral fluid preliminary drug test produced a 'positive' result.

The court heard a blood specimen was obtained by a doctor and the result was 'positive for drugs' and it exceeded the drug-driving limit.

Barrister Martin Dully asked what training or instructions Sgt Stuart had received and he outlined that they received instructions online and they watched an instructor on a training video.

Mr Dully referred to the online testing instructions for the Drager 5000 drug tester device.

"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.

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

Sgt Stuart said he had no device available to monitor the temperature apart from the thermometer in the patrol car and Mr Dully asked the officer if there was a 'defect' in his training, however, Sgt Stuart replied that he 'could not say'.

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

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

In his evidence at an earlier hearing, 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.

Gda Flanagan stopped Mr Melvin at Cloondara, Longford and he noticed his eye pupils had a 'narrow', unusual appearance and an oral fluid test was carried out, which tested positive for drugs and he was arrested at 1.35pm.

A blood specimen was obtained by a doctor which had a 'positive' reading for drugs and it exceeded the drug-driving limit.

Barrister David Staunton stated the inspector had suggested that no-one told them they had to do this, therefore that effectively 'provided cover' with 'no consequence'.

"Who's fault is that I ask rhetorically.

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

Last Tuesday, Judge Bernadette Owens noted that Sgt Stuart said nothing had been explained to him during his training so that he could ensure the Drager 5000 was in the temperature range.

"I can be satisfied that the temperature did not exceed 40C, but can I be certain it was above 5C," she said.

Judge Owens decided to dismiss the case against Mr O'Boyle as she said there was no way of definitively confirming the temperature when the Garda testing device was used on Mr O'Boyle prior to him being detained.

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“I have no way of being certain. I can't be certain that Sgt Stuart formed a reasonable opinion before the arrest."

Judge Owens received further submissions in relation to Mr Melvin's case and she decided to adjourn that case for finalisation on July 31 next.