A CO DUBLIN man has won a Supreme Court order halting his prosecution for drink driving in a case which has exposed what the court described as “a technical flaw” relating to how the Lion Intoximeter machine selects breath specimens for testing.
The court heard that Frank McDonagh (51), Avondale Road, Killiney, provided three exhalations when breath tested by a garda in Dalkey in February 2002.
His first exhalation into the machine resulted in no satisfactory specimens; his second exhalation resulted in just one satisfactory specimen and his third attempt resulted in two satisfactory specimens.
Mr Justice Joseph Finnegan said it was important that only two satisfactory breath samples should be taken, however.He said the specimens provided on Mr McDonagh’s first two attempts were not sufficient to enable the Intoximeter to measure the concentration of alcohol in his breath, and it was not until the third attempt that he had complied with the legal requirement to provide satisfactory specimens. The garda, however, was not entitled to require him to undertake a third attempt.
The Supreme Court was addressing issues referred to it by a Circuit Court judge arising from the case of Mr McDonagh.
The Circuit Court had heard gardaí arrested Mr McDonagh on the night of February 9th, 2002, after receiving a call that a car was allegedly being driven in a dangerous manner. A garda said she observed a car at about 8.30pm driving slowly on Coliemore Road, Dalkey, Co Dublin. The car came to a halt in the centre of the road.
She said the driver gave his name as Frank McDonagh, Avondale Road, Killiney. She noticed an odour of intoxicating liquor from him, and said he appeared to be slumped over in a drowsy manner.
