The High Court yesterday overturned a District Court decision dismissing a drink driving charge against a Co Kilkenny man who was pursued by a Garda patrol car after driving a car from the vicinity of a pub around 3 a.m. with no lights on and on both sides of the road.
Mr Justice O'Higgins remitted the case against Mr Sean Morrissey, Donaghmore, Kells, Co Kilkenny, back to the District Court but granted a 21-day stay on his order in the event of an appeal.
He made the order after granting an appeal by the DPP against a decision of District Court Judge William Harnett of March 4th, 1997 to dismiss a charge of drink driving against Mr Morrissey on the grounds that the prosecution had not established he was spoken to by a Garda, tested with an alcolyser and arrested in a public place.
In his judgment yesterday, Mr Justice O' Higgins said a Garda patrol car pursued a car which left the Sceilp Inn, Collon Road, Kilkenny, around 3 a.m. on November 25th, 1996.
The gardai observed the car lights were not on and as they followed the car, they noted it was being driven on both sides of the road.
The gardai pursued the car and flashed the lights to get the driver to pull over, but he did not. About half a mile down the Kells Road, the driver put on his right indicator.
The driver of the patrol car, Garda Martin Wall, overtook the car and blocked his path into his home.
Garda Frances Dunphy went to the car. The driver rolled down his window and there was a smell of alcohol.
The driver gave his name and address as Sean Morrissey, Donaghmore, Kells, Kilkenny.
Garda Dunphy talked to Mr Morrissey at the rear of his car and she said he became very aggressive and told her: "If you take this any further, you're in trouble. I know lots of the lads up in the station."
Garda Dunphy formed the opinion Mr Morrissey had consumed intoxicating liquor and he consented to give a breath sample.
This gave a positive result. At 3.18 a.m. Garda Dunphy arrested Mr Morrissey and took him to Kilkenny Garda station.
At the close of the prosecution case in the District Court, the solicitor for the defence submitted the prosecution had not shown that the place where Garda Dunphy spoke to, tested and arrested Mr Morrissey was a public place.
Judge Harnett said he was satisfied that, at the point/place of detection and arrest of Mr Morrissey, Garda Dunphy had in her evidence made no reference to the vicinity of where this occurred as being a public place and he dismissed the charge.
Mr Justice O'Higgins said it was unnecessary for evidence to be given, in the absence of evidence to the contrary, that the vehicle continued to be in a public place when it was stopped.
He ruled the District Judge was incorrect to dismiss the case.
