A Portarlington woman has been granted an appeal against a conviction for drink driving as the circuit court has ruled her rights were breached as her examination by a doctor at the garda station did not take place in private.
Sherley Lawlor (57), 44 Kilnacourt Woods, Portarlington, was convicted in Portlaoise District Court of drink driving, on April 29, 2017, at Kilnacourt Woods, Portarlington.
During her appeal against this conviction, Garda Paul Kelly give evidence to Portlaoise Circuit Court, along with State solicitor, Mr Donal Dunne, that on April 29, 2017, the gardaí received a report of a car driving erratically at Kilnacourt Woods.
When the gardaí arrived they observed the appellant sitting in her vehicle in the estate.
Garda Kelly said the bonnet of the vehicle was still warm and when he spoke to the appellant he got a smell of alcohol.
The appellant was unsteady on her feet so the garda formed the opinion she had consumed alcohol.
Garda Kelly gave evidence that the appellant was brought to the garda station where she provided a specimen indicating 73mg of alcohol per 100ml of breath.
Garda Kelly gave evidence that when he charged the accused, she replied: “I drove to the petrol station and back as I was attempting to drive myself to A&E after being assaulted and I realised it was not a good idea to drive so I drove home.”
Defence, barrister Ms Louise Troy said her client was very distraught on the night as she had been assaulted earlier, to which Garda Kelly confirmed the appellant did say she had a dispute with the neighbours that day.
The garda said he thought she was advised to go to hospital after her release from garda custody and he was not sure if any complaint of assault was followed up by his colleagues. He said that while in custody, she indicated an injury to her wrist. He said he did not recall her having cuts to her face.
Garda Paul Dooley, the driver of the patrol car on the night, said on the night the appellant complained of a sore wrist and she had a wrist support on.
He said he was “aware of other incidents”, but did not have dates of these to hand.
Garda Paul Scanlon gave evidence that while in custody, the appellant requested a doctor as she claimed to have chest pains.
The garda said she also had a cut to her face and a bruised wrist.
Garda Scanlon said that the observation period on the appellant before she provided the breath specimen began at 1.35am.
Garda Scanlon confirmed that the doctor examined the appellant during this period of observation.
When the doctor came he advised the appellant to seek medical treatment after her release.
Judge Keenan Johnson remarked that it seemed unusual for someone to be examined by a doctor not in a private setting.
Ms Troy said that the observation period was not carried out in accordance with the regulations, as the appellant had been examined by the doctor during that period.
Mr Dunne, for the State, said that the gardaí had followed the requirements they were meant to and the medical examination of the appellant could just have been cursory.
Ms Troy countered that the 20 minutes observation period should be treated as separate and discrete from the medical examination. She said that the lawfulness of the process had to be called into question.
Judge Johnson said that a person in custody has the right to be examined in private and this had been a breach of fundamental rights.
He said there was no indication what the medical examination was and the court could not speculate.
Judge Johnson ruled that the court had a reasonable doubt over the validity of the observation period and he allowed the appeal.