Drug testing court challenge could leave Gardai out in the cold

December 8, 2023

A court decision is to be made which could set a precedent for hundreds of pending drug-driving cases across the country.

It follows a court challenge taken by local solicitor Frank Dorrian at a sitting of Letterkenny District Court.

Mr Dorrian questioned the use of roadside drug tests taken on the Gardai’s hand-held Drager Drugs Test device when the outside temperature was less than five degrees celsius.

In the user’s instruction guide for Gardai, it is recommended the device is not used in ambient weather below 5 degrees celsius.

The Drager device was introduced to help combat the huge increase in people driving while under the influence of drugs.

Gardai on traffic duty underwent in-service courses on how to use the devices.

However, a challenge on the use of the equipment may now hamper their use on colder nights.

The issue was raised by solicitor Frank Dorrian in the case of a driver stopped by Gardai while allegedly driving at a speed of 141kph at Raymoghy, Manorcunningham on January 22nd, 2022 at 10.10pm.

The driver of a Landrover Discovery was stopped by Garda Garrett Monaghan who formed an opinion that the driver was driving while under the influence of an intoxicant.

An oral swab was taken using the Drager which showed a positive result for the presence of cocaine.

Garda Monaghan told the court how he arrested the accused man and brought him to Letterkenny Garda Station where a specimen of blood was taken by a nurse which proved positive for the presence of cocaine.

On cross-examination by Mr Dorrian, Garda Monaghan was asked if he had received training in the use of the Drager and although he couldn’t exactly recall he estimated he had received a one day instruction as part of in-service training.

Mr Dorrian asked the Garda if he was aware that the equipment must be used when the ambient temperature is only between 5 and 40 degrees celsius.

The solicitor said he had documentation to prove that at the time and on the date that the Drager was used that it was actually only 2 degrees celsius, which is below the recommended level of use.

Garda Monaghan suggested that holding the equipment in the palm of his hand would bring up the temperature but admitted that the instructions of not using the Drager when it was below 5 degrees celsius was “not something I was conscious of.”

Mr Dorrian said that this was something the Garda was “supposed to check because you are trained ….and one way or another you didn’t know.”

The solicitor told the court that this was not a “flippant submission” saying “If this happened at 5pm on a July evening this argument would be nonsense.”

Responding to Mr Dorrian’s claims, Garda Inspector Tony Byrne said that we don’t know what the ambient temperature in the Garda car where the Drager device was being held was.

He added that it was doubtful if Garda were driving around in a cold car but admitted that “Garda training does not seem to extend to what is specified in the manual.”

He added that the use of the Drager was only a “preliminary aid to assist Gardai in determining an offence.”

Mr Dorrian replied that we have a case where equipment was being operated outside the parameters.

Judge Eiteain Cunningham adjourned the case until January 18th, 20024 to consider all matters and submissions.