A blood test showing that Eirgrid chief executive Mark Foley was more than four times over the legal limit was “not admissible” as evidence in a drink driving case against him, a judge has ruled.
Mr Foley (63) of Hunters Leap, Newcastle, Co Wicklow faced one charge of being “under the influence of an intoxicant to such an extent as to be incapable of having proper control of the said vehicle”.
He pleaded not guilty at Dún Laoghaire District Court on Tuesday to the charge under Section 4 (1) and (5) of the Road Traffic Act 2010.
Garda Kevin Massey of Irishtown Garda station said he was approached by Mr Foley on Anglesea Road in Dublin 4 on the evening of January 13th, 2023 at 5.45pm.
Mr Foley told the garda he was driving in the direction of Ballsbridge. He said he had picked up his mobile phone and was speaking to someone on it when he lost concentration and hit two parked cars.
Garda Massey said smelled alcohol on Mr Foley’s breath. He cautioned him and asked him if he had been drinking. Mr Foley replied that he had not.
The garda then asked him to provide a sample of breath which Mr Foley did. He failed the breath test, the court heard.
Mr Foley was arrested at 6.10pm on suspicion of drink driving, cautioned and conveyed to Irishtown Garda station. His rights were read and explained to him.
A doctor was requested at 6.20pm. The doctor arrived into Irishtown Garda station at 7.35pm and took a blood sample under Section 12 (B) of the Road Traffic Act 2010. Garda Massey said he did not recall the exact words he used in requesting the sample from Mr Foley.
At 7.42pm, Mr Foley provided a sample. He was offered a container with a portion of the sample which he accepted. Mr Foley was then released at 7.55pm.
Garda Massey provided a secondary sample to the Medical Bureau of Road Safety.
On January 20th, 2023, the bureau sent Garda Massey a certificate to state that the sample showed a blood alcohol concentration of 216 milligrams of alcohol per 100ml of blood. The current drink driving limit is 50mg of alcohol per 100ml of blood.
Judge Anne Watkins said a proper request was not made at Irishtown Garda station to Mr Foley, who should have been given the option of a urine sample.
As a result, she said, the garda had “no right” to take the blood sample. “Therefore, it is not a legally taken sample,” she said, adding that it could not be admitted as evidence in the case.
As nobody had seen Mr Foley driving, there was “no evidence at all” to back up the State’s claim that he had been drink driving, she added.
She said it was not known why he had lost control of the vehicle. It could have been down to a fox or a child running out on the road or an oil slick or because he was not keeping a proper lookout, she suggested. “We don’t know it was because of alcohol,” she said.
The notion he had crashed into the parked cars because he had been drink driving was, as a result, “not admissible”.
Prior to joining Eirgrid in June 2018, Mr Foley had held senior positions in the Dublin Airport Authority and Coillte. He stepped down as Eirgrid chief executive in April this year, a day before the case first came to court.
No reason was given for his departure and Eirgrid declined to comment at the time.
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