A man has had his conviction for driving under the influence of cannabis overturned on appeal, after a judge found the prosecuting garda had failed to say whether he witnessed the roadside drug test actually being completed.
Jordan Lanigan (25) with an address at Darndale, Dublin 17 had pleaded not guilty to driving under the influence of drugs in the District Court.
Garda Fergal McSharry told the District Court Appeals Court today that he was on patrol on Clonshaugh Road, Dublin 17 at 3.15pm on March 4, 2019 when he stopped a driver who he had observed with a mobile phone to his ear.
Garda McSharry said he smelled the scent of cannabis from the car and that he tested Mr Lanigan’s oral sample on a Drager drug test machine, which he said returned a positive result.
Mr Lanigan was arrested under section 4(1) of the Road Traffic Act 2010 and taken to Coolock Garda Station.
Garda McSharry said that at the station, a doctor proceeded to take a blood test which the court heard later returned a positive result for cannabis.
Mr Lanigan was convicted in the District Court on March 14, 2024 for drug driving under section 4(1)a of the Road Traffic Act 2010 inserted by section 8a of the Road Traffic Act 2016 and contrary to section 4(5) of the Road Traffic Act 2010. He was disqualified from driving for one year and given a €300 fine.
At the District Court Appeals Court, Judge Jonathan Dunphy said there was no specific evidence given by Garda McSharry that Mr Lanigan actually took the drug test, only that he handed him the test and Mr Lanigan handed it back.
He said that the Garda’s evidence of: “I handed it to him and he handed it back to me” was insufficient as there is no evidence that Mr Lanigan put the test in his mouth and did what was required of him to complete the test.
Judge Dunphy said it is an essential element of the whole procedure and he cannot infer that the test was done or not. He said that without direct evidence from the garda, the test may have been refused and handed back uncompleted.
Judge Dunphy decided to allow the appeal of the conviction from the District Court.