Garda Sergeant in Cork fails in his appeal against drink-driving conviction

The penalty on the conviction that was under appeal included a two-year driving disqualification which will now come into effect from August 1

Robert Brosnan was off-duty at the time of the incident. File picture: Dan Linehan

A Garda Sergeant who appealed a drink-driving conviction and two-year driving disqualification on the basis of a claim that his detention at the scene of a road traffic accident was unlawful was unsuccessful in his appeal on Thursday.

Judge Helen Boyle rejected the appeal by Robert Brosnan, who was off-duty at the time of the incident on December 19, 2020, at Cork Circuit Appeals Court. “I think the arrest was valid and everything that flowed from it,” Judge Boyle said.

The penalty on the conviction that was under appeal included a two-year driving disqualification. This disqualification will now come into effect from August 1. Judge Boyle noted that the appeal was based on the defence submission that the appellant was unlawfully detained following a road traffic accident.

Robert Brosnan identified himself as the driver of the vehicle when gardaí responded to a call to the scene of the accident. Gardaí spoke to people at the scene, including Mr Brosnan.

The evidence was that one of the gardaí investigating at the scene walked down some distance from her parked patrol car to Mr Brosnan's own car.

“She cautioned him. She got a smell of alcohol from his breath and his eyes were bloodshot. She cautioned him because she thought he may have committed an offence,” Judge Boyle said.

After the caution was administered, the officer went back to her car to get the Drager device to test for suspected alcohol and she rang her inspector as she walked. Barrister, Emmet Boyle, submitted that the period between the caution to the driver and the time when she returned with the Drager was a period of unlawful detention and that everything that followed after that from the prosecution side was invalid.

State solicitor, Jeremiah Healy, argued that the time between the caution and returning with the Drager did not represent an undue delay. Mr Healy further stated that Robert Brosnan was not unlawfully detained and that he stayed at the scene voluntarily from the beginning.

“The administration of a caution is not a detention so he was not unlawfully detained,” Mr Healy submitted.

Judge Boyle agreed with that point that the appellant was not unlawfully detained. The judge said he was free to leave but volunteered to remain at the roadside. Judge Boyle concluded that the later arrest and investigation were lawful.

Emmet Boyle, the defence barrister, said that apart from the submission he had made on this issue he was not going into evidence in the case.

Therefore the conviction and fine of €150 and the two-year driving disqualification, previously imposed at Cork District Court, remained on the count that on December 19, 2020, 44-year-old Robert Brosnan of Silversprings drove a car at Silversprings Lane, North Ring Road, Tivoli, Cork, while there was present 62 mgs of alcohol per 100 mls of his breath.