A man who was found sleeping over the wheel of a crashed van has had his conviction for drug driving overturned after an appeal court heard there was “zero evidence” he had been driving within three hours of a blood sample being taken.
Derek Smith (43) from an address at Holly Road, Donnycarney, Dublin 3 had pleaded not (NOT) guilty to drug driving under Section 4(1) of the Road Traffic Act 2010 in the District Court. He was found guilty by Judge Grainne Malone.
Garda Sandip Shrestha told the District Court Appeals Court today (FRI) that he arrived at the scene at Collins Avenue, Dublin 9 on January 15, 2021 at around 3.25pm to see the passenger side of a van had struck a tree.
He said he saw Mr Smith slumped over the steering wheel asleep and he only woke up when the garda tried to get his attention by knocking on the window.
Garda Shrestha said that Mr Smith was not able to walk out of the vehicle, was unstable on his feet, had slurred speech and bloodshot eyes.
He said that the tyre of the van was buckled and there was damage on the wing mirror.
Mr Smith was arrested on suspicion of drug driving and was driven to a Garda station where a blood sample was taken at 4.36pm.
The court heard that a sample sent for analysis allegedly returned 1435.0ng/ml of Benzoylecgonine (Metabolised Cocaine), of which the legal limit is 50ng/ml and 29.7ng/ml of Cocaine, which has a 10ng/ml legal limit.
Defence counsel for Mr Smith, Gregory Murphy BL, said that as Garda Shrestha did not see Mr Smith driving and did not provide any evidence of Mr Smith driving, he could not prove at what time he was actually driving the van.
A blood sample must be taken within three hours of the accused driving a vehicle in order for it to be admissible and Mr Murphy said the prosecution had “zero evidence” that his client had been driving within three hours of the blood sample being taken.
Mr Murphy also said that there was no evidence, by way of a reference number on the bottle that was sent to the Garda lab, that could prove that the blood tested was Mr Smith’s.
Judge Fiona O’Sullivan said that although she did not agree with the defence on all points, she agreed that there was no evidence of Mr Smith driving within the three hour window needed to take the blood sample.
She also agreed that the certificate from the Garda drug testing bureau with results of the blood sample could not be admissible.
Judge O’Sullivan decided to allow Mr Smith’s appeal against his conviction.