A garda is to face a new charge of driving a vehicle with a tyre tread depth below the legal limit the night a man was killed by a car.
Judge Bridget Reilly today ruled that a summons against Garda Damien Carey could be amended.
The officer was originally brought before the Dublin District Court charged with having an excessively worn tyre on his privately-owned car at Main Street in Lucan on March 4 last.
He had pleaded not guilty to the charge.
The officer’s vehicle was checked after Derek O’Toole, aged 24, of Shancastle Drive, Clondalkin, died of crush injuries consistent with the wheels of a vehicle going across his body.
No-one was ever charged in relation to his death.
Lawyers for the 27-year-old garda, from Lucan, previously argued that the charge cited in court documents no longer exists.
Defence barrister Martin Fitzgerald claimed the applicable part of the 1963 Road Traffic Regulations, from article five to 17, had been revoked by a statutory instrument around five years ago.
Ray Briscoe, for the Director of Public Prosecutions, made an application for the court to amend the charge to state that the tyre tread debt was below 1.6mm.
“The difference in wording set out has put a dept of a type at 1.6mm as opposed to excessively worn,” he said.
He outlined two previous cases which amendments to road traffic charges had been made and upheld in court.
Mr Fitzgerald said the terminology ’excessively worn’ had not been used since 1991 and stated the wording could prejudice the defendant
“The state is endeavouring to put forward a completely different offence,” he said.
Garda Carey’s barrister also maintained that under the Petty Sessions (Ireland) Act, a charge could not be changed more than six months after the alleged offence.
“That six months has lapsed,” he added.
Judge Reilly said she believed there had been a defect on the summons and made an order to amend it in line with Road Traffic Regulations imposed in 2003.
“I do not believe the defect on the summons can mislead or prejudice to the nature of the case which remains the same,” she said.
“The defendant was aware of the case challenged and he was in a position to prepare a defence.”
The case will appear before Dublin District Court for mention on February 27 when a hearing date will be fixed.
The judge also made an order for costs for defence witnesses who had made themselves available for a previous hearing date.
Garda Carey, dressed in his uniform, and Mr O’Toole’s family were in court for the ruling.
At Mr O’Toole’s inquest last year, a jury sitting at Dublin County Coroner’s Court returned a verdict of death by misadventure.
Garda Carey was off duty the night Mr O’Toole died and was diving his girlfriend and two friends, all gardaí, home from a party.
The garda told the inquest he had drunk three pints of Guinness and less than two bottles of Corona and while driving home he saw what appeared to be a black bag on the road.
He said as he swerved to avoid it felt as if he had run over something, like a bottle, and when he reversed his car, he realised there was a body on the road.
The officer also said he believed he has seen another car turning in the area previously.
The inquest heard Garda Carey was just under the legal limit for drink driving, with a breathalyser reading of 31 mgs of alcohol per 100 mgs of breath, at the time of the incident. The legal limit is 35 mgs per 100 mgs of breath.
It is understood Mr O’Toole, who had been out drinking with friends, had collapsed on the road before he was hit.