A garda has failed in his attempt to have a charge of driving a car with a bald tyre dropped because it was based on an out-of-date law.
Garda Damien Carey (27), from Lucan, Co Dublin had been charged with an offence of having an "excessively worn" tyre on his private car.
The summons arose after Garda Carey's car was examined following an incident in which a pedestrian Derek O'Toole was run over and killed in the early hours of March 4th last year in Main Street, Lucan. Garda Carey was off-duty when he drove himself and three other people home from a party in Clonee, Co Meath.
Mr O'Toole, who had been drinking and was lying in the centre of the road, died of crush injuries consistent with being run over by a car.
At Mr O'Toole's inquest, Garda Carey recalled going over what appeared to be a black bag and what felt like a bottle. The passengers in the car recalled driving over what they initially believed to be a cat or a dog.
Nobody has been charged with any offence in relation to Mr O'Toole's death.
Garda Carey will now face a new charge of driving a car with a tyre that had less than the minimum thread depth of 1.6mm.
His counsel Martin Fitzgerald sought to argue that the charge was based on the 1963 road traffic regulations which had not been used in legislation since 1991 and had been revoked by statutory instrument.
Mr Fitzgerald told Dublin District Court he could find no definition for the expression "excessively worn" and the State was asking for an amendment that was materially different from the original summons. He suggested the court did not have the power to amend the summons as it was also out of time, being six months after the original offence was alleged to have taken place.
Ray Briscoe, prosecuting, said the original charge would need to be amended to take account of a new statutory instrument which became effective in January 2003.
He said there was no material difference in either charge as both amounted to an allegation of a bald tyre and it was just a "slight rewording".
Judge Bridget Reilly granted the Director of Public Prosecution's request for a new summons to be issued. She said that, though the new summons added a technical element, it was effectively the same summons and Garda Carey had been in a position all along to prepare a defence to it.
She did not believe the defect on the summons could mislead or prejudice the nature of the case and she said she was bound by case law in that regard.
The case was adjourned until February 27th. Judge Reilly also made an order for costs appropriate to the defence if there is no agreement in relation to the issue of costs at the end of the case.
