By Liam Heylin
A drink-driving prosecution was challenged successfully yesterday on a submission related to the Irish language and the statement issued from the breath test machine known as the evidenzer.
While the evidenzer case, which went as far as the Supreme Court on an Irish language issue, ultimately proved unsuccessful as a defence for more than 1,000 drink-driving cases, there was success for one motorist on a somewhat similar point.
Judge John King dismissed the case against Graham Barrett, aged 34, of 37 Drom Slí, Courtbrack, Blarney, at Cork District Court.
At 8am on June 5, 2017, gardaí were operating a checkpoint at Lee Rd, when the defendant was required to give a breath test. Later in the evidenzer room at the garda station, the machine printed two identical statements allegedly showing 61mg of alcohol per 100ml of breath.
Barrister Sinead Behan, instructed by solicitor Carrie McDermott, submitted that section 13 of the Road Traffic Act statement in this case was not “duly completed” and not admissible in evidence. Ms Behan focused her submission on the evidence of Garda Michael Walsh, who was asked what language he selected when undertaking the evidenzer procedure at the station. Gda Walsh replied that he had selected English as he believed this was the only option available.
Ms Behan renewed her submission yesterday that because the garda had perceived that only English was available, he had not selected a language in accordance with the statutory instrument of the Road Traffic Act.
Ms Behan argued it was a unique set of circumstances where the garda gave evidence that the machine was incapable of producing anything other than an English document.
Inspector John Deasy said the defendant was not prejudiced as it was in one of the permissible languages which was selected.
Judge John King said the garda’s evidence was not that he had this choice but that, in fact, he had no option but to select English. The judge said the statutory instrument required that Irish or English would be selected.
The judge concluded that the court could only infer from the evidence in the case that the machine did not have the option of Irish or English as required, or else it did have this capacity but the operator was not aware of this fact.
Judge King said that in those circumstances, he would have to have a reasonable doubt and he dismissed the case.