Drug driving case against Cork man struck out as manufacturer guidelines not followed on test

Defence counsel argued garda had not complied with 10 minute observation period prior to testing accused

Accused man was seen driving slowly, repeatedly hitting the breaks and veering into a lay-by by a garda at a checkpoint

A Cork man who was believed to be many times over the limit for cannabis escaped a drug driving conviction because the test had not been administered by gardaí according to the manufacturer’s guidelines.

Christopher Carey, 34, was seen driving slowly, repeatedly hitting the brakes and veering into a lay-by.

Garda Patricia Hanley stopped Mr Carey and observed that he had “pinpoint pupils”, kept repeating himself and seemed disorientated.

Mr Carey, of Glenabo, Fermoy, Co Cork,  tested positive for cannabis in a roadside oral fluid test. 

A subsequent blood test showed readings of 5.8ng of cannabis where that reading must be less than one, and 36.2ng where it must be less than five. 

Any one of those readings would classify him as many times over the legal driving limit for cannabis.

But Susan Lewis, defending, argued that Garda Patricia Hanley had not complied with the 10 minute observation period prior to testing Mr Carey. This fundamentally compromised the validity of the test, Ms Lewis argued.

The manufacturer’s guidelines with the Drager Drugtest 5000 device used by gardaí suggest that the tester should wait 10 minutes and observe the person for all that time before administering the test.

However, the court heard that the 10 minute observation period is not complied with during mandatory intoxicant checkpoints that gardaí set up to randomly test passing motorists, as such a practice would be cumbersome and could lead to major traffic congestion and delays.

The court heard that Gda Hanley stopped the defendant because she was suspicious of his driving, not at a mandatory intoxicant checkpoint.

A drug test on the side of the road using the Drager device showed a positive result for cannabis as did a subsequent blood test taken by a GP at the garda station a short time later.

Ms Lewis argued that her client’s ‘pinpoint pupils’ could have been a reaction to that afternoon’s daylight.

She said that there was no note made of other telltale signs of intoxication like red eyes or slurred speech.

Inspector Tony O’Sullivan said that he understood from legislation that the Drager test must be carried out on the roadside and give a positive reading before a blood test can be insisted on at the garda station.

“Is it necessary for the 10 minute observation period? Some will say it’s not. It’s not in legislation,” Insp O’Sullivan said.

He said that it was for Judge Joanne Carroll to decide whether the 10-minute observation rule should have been observed. If she decided it was mandatory then the State’s case could go no further, he said.

Judge Carroll dismissed the case because the arresting garda did not observe the defendant for 10 minutes before administering the test.