A driver who was accused of refusing to provide a blood specimen to a garda has had his conviction overturned on appeal.
Judge Fiona O’Sullivan decided to allow the appeal of Dillion Mulligan (25) against his conviction, on the basis that there was no evidencehe had been informed by the garda that a failure or refusal to give a sample was a criminal offence.
Mr Mulligan, with an address in Dun Laoghaire, was convicted in the District Court of failing or refusing to provide a blood specimen contrary to the Road Traffic Act 2010. He was disqualified from driving for four years and given a €300 fine. He later lodged an appeal against his conviction.
Garda Christopher McEntagart told the District Court Appeals Court that he stopped a car on Merrion Road at 2.15am on May 25, 2024. He said that he observed the car driving in a slow, hazardous manner.
The garda said that he spoke to the driver and that there was a smell of cannabis coming from the vehicle. He said that he conducted a drugs search but found nothing.
The garda said that he smelled cannabis coming from Mr Mulligan and that his eyes were glossy.
He said that he made a requirement to provide oral fluid for a swipe test and that he explained the penalties. He said that he got a “positive detection” and formed the opinion the driver was under the influence of an intoxicant.
The garda said that Mr Mulligan was arrested and brought to a garda station, where a doctor was called.
He said that he then made a requirement to provide a specimen of blood and explained the penalties. The garda said that Mr Mulligan indicated that he understood but refused to give a sample.
Defence counsel for Mr Mulligan, Martin Joseph Dully BL, said that his client would have explained that he had difficulty with needles and that he needed to eat before providing a specimen.
The garda said that he had no recollection of what Mr Mulligan had said and that he just noted his refusal to comply.
Mr Dully said that the penalties and consequences of failing to comply with a requirement must be specifically given, informing him that it is a criminal offence not to do so.
Counsel said that there was a complete failure to prove that his client had been informed that this was an offence.
He also said there was “extremely unsatisfactory” evidence about the actions and words of the accused and that there wasn’t evidence of the words used in the refusal.
Mr Dully said that the oral drug swipe can indicate the presence of many drugs including cannabis, cocaine and MDMA. He said that there was no evidence that Mr Mulligan tested positive for a scheduled drug.
In reply, counsel for the State said the garda gave evidence was that Mr Mulligan was warned of the consequences of refusing to give a sample.
He said the court can infer in relation to the oral drug swipe and that the fact that it tested positive for a drug should be enough.
Prosecution counsel said that gardai do not have to be “walking repositories of the law” and that the garda explained the reasons for arrest.
Judge Fiona O’Sullivan said she appreciated that Garda McEntagart did his best in respect to an event which happened almost two years ago.
However, she said there was no evidence Mr Mulligan was informed that it would be a criminal offence and she was not satisfied that the requirement made by the garda was lawful.
The judge noted there were other issues raised, but found that this was a substantial deficit which was fatal to the case. The appeal was allowed and the conviction was overturned.