One of the first drunk-driving prosecutions in the State as a result of using new Intoxilyzer breath-testing equipment has been adjourned pending a High Court opinion.
Following legal argument at Kiltimagh Court, Co Mayo, Judge Desmond P. Hogan said a drunk-driving charge against Mr David Aspinall, of Greenfields, Kiltimagh, would be dealt with by way of case stated. The case was adjourned until March 16th.
The new Intoxylizer device, which make blood and breath tests by a doctor in cases of suspected drunk-driving unnecessary, are being tried on a pilot basis in two areas, Castlebar Garda district in Co Mayo and the area covered by Pearse Street station in Dublin.
Garda John Daly said he stopped the defendant driving his car on the Knock-Kiltimagh Road at 1.30 a.m. on November 6th. There was a smell of intoxicating liquor from his breath. He asked Mr Aspinall to provide a breath specimen and the test was positive. He arrested Mr Aspinall and took him to Castlebar Garda station. Garda Daly said he observed the defendant in the public office for 20 minutes, as was required. During that time he did not eat, drink or smoke. At 2.35 a.m., Mr Aspinall provided his first breath test and provided the second at 2.36 a.m. The apparatus then printed two identical statements which had a reading of 49 micrograms of alcohol per 100 ml of breath. The garda and the defendant signed the statements.
Under cross-examination by Mr Aidan Crowley, Garda Daly said the apparatus carried out internal checks and the simulator check had to be between 32 and 37. It took in air from the room and checked the mouthpiece and machine were free from alcohol. If everything was not in order the machine would abort. The arrested person had three minutes to provide a breath specimen.
Mr Crowley said the first simulator check was at 2.34 a.m. and the figure was 34. He asked how could he be satisfied the apparatus continued to be acceptable if the second specimen was given before the second simulator check. Mr Crowley asked where did the 49 micrograms of alcohol reading come from. Garda Daly said the machine took the lower reading, in this case 60, and deducted 17 per cent from it.
Mr Crowley said there were two readings on the statement, one was 64 and the other 60, and the lower must be selected. When you went further down the concentration was 49. There was no explanation given how that was arrived at. He had been given no opportunity to check that for himself.
Judge Hogan said Mr Crowley was asking where did it say in law 17 per cent was to be deducted. According to the law why not deduct 25 per cent? By what authority did the machine select 17 per cent.
Supt Michael Hussey said the machine deducted 17 per cent, which was very much in the defendant's favour. The machine had been used in Britain for many years and was very successful. Judge Hogan said people were being asked to accept everything on faith. He did not think it an unreasonable question. Something was being done completely automatically and the defendant did not have to accept that automatically.
Judge Hogan said for clarity he would be prepared to state a consultative case on it. The matter was adjourned until March 16th.