Case falls as penalty notice issued a day after it was posted!

April 6, 2018

A drink driving case against a Letterkenny man was dismissed due to an ‘irreconcilable conflict’ in paperwork.

Enda McGowan, of Dromore, Letterkenny, was before Letterkenny District Court charged with drink driving on May 15, 2016.

McGowan was approached by Gardai at Tobin’s Service Station and Garda McKenna detected a ‘strong smell of intoxicating liquor’ from the vehicle, a red Volkswagen Golf.

Garda McKenna formed the opinion that McGowan was incapable of having proper control of a mechanically propelled vehicle in a public place’.

McGowan was subsequently arrested and convened to Letterkenny Garda Station, where a breath sample recorded 33mg of alcohol per 100 ml of breath.

Defending solicitor Kieran O’Gorman contested that while the Garda had formed an opinion ‘on the smell alone’ that there had ‘to be evidence that the Garda had reasonable grounds that he was incapable of having control’.

Mr O’Gorman pointed out that the fixed charge penalty notice (FCPN) was dated June 23rd, but that the certificate of posting stated that it had been posted on June 22nd.

“There is a complete contradiction there,” Mr O’Gorman said.

After deliberating on the matter, Judge Paul Kelly ruled that Garda McKenna’s opinion had been validated by the subsequent breath test and that the arrest was valid.

However, Judge Kelly said that the documents were incompatible and that there was an ‘irreconcilable conflict’.

“The FCPN procedure is flawed in this case,” Judge Kelly said. “It was posted the day before it was issued. I am dismissing the summons on that basis.”



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