An Inishowen man was cleared of drink driving in court recently after Gardaí failed to prove a time of driving prior to the arrest.
Kevin Doherty, 20, from Glenkeen, Gleneely, was charged with drink driving, driving without a licence and insurance, at Carrickmaquigley, Redcastle, on January 1, 2017.
He contested the charges against him, when he appeared before Carndonagh District Court .
After hearing evidence, Judge Paul Kelly convicted Mr. Doherty of having no insurance, but cleared him of drink driving.
Garda Stephen Canning told the court that on Sunday, January 1, 2017, he was on mobile patrol in Redcastle with Sgt. Sean McDaid when they saw a red van parked up at Carrickmaquigley.
He said 50 yards from the van he saw three young men standing at the bottom of a driveway.
“Given the location and the time of night, I believed it was unusual for the three men to be there – I believed it was worth addressing so I spoke with them,” Gda. Canning said.
“I also noted that their clothing was dry even though it had been raining heavily so I believed they had come from the red van, parked nearby.”
Gda. Canning said the young men were ‘evasive’ and failed to account for their presence in Redcastle.
“I considered they may be up to illegal activity but this was not the case,” Gda. Canning said.
The Moville based garda said at 2.01am Kevin Doherty identified himself as the driver of the van.
“He said it was his father’s van, which they had taken without his father’s consent, and they took it to that location as they were attending a nearby disco,” Gda. Canning said.
“He said he had no licence or insurance and admitted having two or three pints earlier.”
Gda. Canning said Doherty failed the roadside breath test and was arrested and taken to Buncrana Garda Station at 2.40am, where he was processed for drink driving.
Defence solicitor Frank Dorrian raised concerns that Gda. Canning didn’t caution Mr. Doherty before questioning him about who was driving or who was drinking.
He also argued there was no time of driving given in court. He said the prosecution for drink driving must fail without this piece of evidence.
“As well as this, he did not caution Mr. Doherty before he had questioned him,” said Mr. Dorrian.
“If Garda Canning had not asked the questions there would never have been a prosecution – without the question he doesn’t have the evidence,” he added.
Gda. Canning said he was just carrying out enquires with the three young men.
Garda Inspector Seamus McGonigle accepted there was no precise time of driving given. However he said he was satisfied that it was within three hours of being questioned as it was a very wet night and they were dry.
Judge Paul Kelly said Gda. Canning was entitled to carry out enquiries to find out who was driving. However, he said having done that he should have cautioned Mr. Doherty regarding the drink driving charge.
“Also, there is no time of driving given,” said Judge Kelly.
“They could have been sitting in the van for some time before the guards arrived. We don’t know.”
Judge Kelly said he would dismiss the drink driving charge but asserted that Doherty has a case to meet on the licence and no insurance charge.
Mr. Dorrian said his client has no previous convictions and works fulltime as a plasterer in Dublin, earning €100 per day. He said the Gleneely man hopes to get a licence.
He asked Judge Kelly not to ban him for having no insurance as it was his first offence.
Judge Kelly fined Doherty €300 for having no insurance and took the no licence charge into consideration. He agreed not to disqualify him on this occasion, however he warned Doherty that he was ‘very fortunate’.