A WOMAN accused of failing to provide a specimen of breath to a Garda who suspected her of drinking and driving has had the case dismissed by a judge.
Judge Paul Kelly, sitting in Carndonagh District Court, made the decision after hearing evidence against the female motorist.
The case was contested by solicitor Frank Dorrian on behalf of his client who was involved in a road traffic accident near Malin in 2011.
A first aider at the scene said the woman was initially compliant but was clearly upset and later refused his further offers of help.
The woman also later declined help from ambulance personnel, said Mr Dorrian, who argued she had suffered some sort of head injury, was upset and disorientated.
A Garda, under cross-examination from Mr Dorrian, admitted that he had formed the opinion that the motorist had been drinking after observing her behaviour.
He then asked her to give a roadside breath sample which she refused.
The Garda agreed that the woman did later agree to giving a breath test at a Garda station.
However the prosecution charged the driver with failing to give the first breath test.
Mr Dorrian argued that under road traffic legislation that the Garda could not use two ways to reach a belief that someone had been drinking and driving.
In this case the Garda said he had formed the opinion on observation; and then proceeded to attempt to carry out a roadside breath test.
The Garda could not, said Mr Dorrian, use both methods to form an opinion before taking the woman to the Garda station.
Judge Paul Kelly said there were “several frailties” in the case and dismissed the charge.