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Undriveable car, case dismissed

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2

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    #32
    Barr
    Registered Users Posts: 6,992 ✭✭✭Barr


    If this was a civil case I'm sure he wouldn't have got off.


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    #33
    Armin_Tamzarian
    Closed Accounts Posts: 10,833 ✭✭✭✭Armin_Tamzarian


    Flann Brennan is fairly well known for making bizarre rulings.


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    #34
    hondasam
    Closed Accounts Posts: 34,419 ✭✭✭✭hondasam


    latenia wrote: »
    As far as I can tell, this decision gives carte blanche to anyone who feels like going for a joyride, as long as they make sure to total the car when they're finished.

    It would not be unusual for someone to write of a car while drunk and then report it stolen. People do all sorts of things to get of charges.


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    #35
    Armin_Tamzarian
    Closed Accounts Posts: 10,833 ✭✭✭✭Armin_Tamzarian


    It's retarded, plain and simple.
    The fact that it isn't technically an MPV post-event is irrelevant.


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    #36
    _Kaiser_
    Registered Users Posts: 28,695 ✭✭✭✭_Kaiser_


    As I read it (twisted as it is)..

    This would only work if you hadn't been observed (by the Gardai) driving the car beforehand.

    If they only turn up AFTER you've crashed it/written it off then I SUPPOSE in theory there is no evidence that you were driving it at all.. you could have been walking along in your drunken haze and decided that you'll just have a little rest in this totalled car you came across? :rolleyes:


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    #37
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    biko wrote: »
    Not a lawyer but wasn't the point that he could drive it to the scene?
    Not being able to drive it away from the scene is irrelevant.

    There are two district drink driving offences, one is driving the others is being in charge with intention to drive. In the first one if it's a sample case there is a legal requirement that the sample is taken within 3 hours of driving. If there are no witness as to when the crash happened then it's difficult to prove that case.

    The second dd charge which was in this case, bring in charge with the intention to drive well you can't drive a car that will not drive so that one goes out the window.


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    #38
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    Beer Baron wrote: »
    If a Garda is chasing you in your car then you:

    Crash into a pole so badly your car is "undriveable" so you can then argue that no chase could ever have existed because the car is now in bits. :confused:

    Judge: You ran a bus full of orphans and nuns off a ravine and they all died in a terrible ball of fire

    Barrister: He then crashed his car into a pole and wrote it off

    Judge: No problem so, case dismissed. Car couldn't have been moving anyway, must have been an act of god or something

    That would not work, as the Garda can give evidence of driving so it s drink driving you would be charged with not drunk in charge with the intention of driving.


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    #39
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    franksm wrote: »
    That case beggars belief. Someone needs to look into just how competent that judge isn't.

    The judge is in fact correctly applying the law as drafted by the Dail, based on the evidence before him, remember judges must act only on evidence and the law.


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    #40
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    ShadowHearth wrote: »
    So if I am completely drunk while driving and hear the sirens behind me, then I increase speed and ram the nearest lamppost?

    No drink driving as I was not driving...

    Honesty, wtf? I still can't understand their reasoning behind it?!

    No that is not what the judgement said, if that happened he would have been done for drink driving, he was charged with beng in charge of a mpg with the intention to drive while intoxicated.


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    #41
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    Barr wrote: »
    If this was a civil case I'm sure he wouldn't have got off.

    You are correct, the civil standard of proof is much lower than criminal, it's on the balance of probabilities. Where criminal is beyond a reasonable doubt. In a civil case for damaging the pole the judge would say on balance he was driving when car crashed so he must pay.


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    #42
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    Armin_Tamzarian wrote: »
    It's retarded, plain and simple.
    The fact that it isn't technically an MPV post-event is irrelevant.

    It's very relevant to the charge the current RTA says

    5.— (1) A person commits an offence if, when in charge of a mechanically propelled vehicle in a public place with intent to drive or attempt to drive the vehicle (but not driving or attempting to drive it), he or she is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle


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    #43
    Barr
    Registered Users Posts: 6,992 ✭✭✭Barr


    So am I right in thinking that <snip> defence was based on him telling the judge he started drinking after crashing his car whilst sitting in the drivers seat waiting for the Gards to arrive :eek:

    The mind boggles :confused:


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    #44
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    Barr wrote: »
    So am I right in thinking that Damien Kierans defence was based on him telling the judge he started drinking after crashing his car whilst sitting in the drivers seat waiting for the Gards to arrive :eek:

    The mind boggles :confused:

    No his defence was keeping his mouth shut, thankfully in this country you don't prove your innocence the state prove your guilt. I would guess in this case AGS closed the case, barrister for accused sought direction as charge not proved. The accused would have said nothing or offered any explanation.


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    #45
    Armin_Tamzarian
    Closed Accounts Posts: 10,833 ✭✭✭✭Armin_Tamzarian


    ResearchWill wrote: »
    It's very relevant to the charge the current RTA says

    5.— (1) A person commits an offence if, when in charge of a mechanically propelled vehicle in a public place with intent to drive or attempt to drive the vehicle (but not driving or attempting to drive it), he or she is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle

    You are correct.
    I thought he had been charged with drink driving.


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    #46
    Barr
    Registered Users Posts: 6,992 ✭✭✭Barr


    ResearchWill wrote: »
    No his defence was keeping his mouth shut, thankfully in this country you don't prove your innocence the state prove your guilt. I would guess in this case AGS closed the case, barrister for accused sought direction as charge not proved. The accused would have said nothing or offered any explanation.

    Would the Gards not have taken a statement from the accused after the incident. It seems crazy he never had to give an explanation.


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    #47
    Victor
    Registered Users Posts: 78,273 ✭✭✭✭Victor


    mb1725 wrote: »
    I assume this decision could set a precedent?
    District court, no formal precedent.


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    #48
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    Barr wrote: »
    Would the Gards not have taken a statement from the accused after the incident. It seems crazy he never had to give an explanation.

    In drink driving it's very rare to take a statement. Also thankfully you do still in most cases have the right to silence. Even if he was asked questions I assume he just said no comment.

    We don't yet usually require citizens to actually convict themselves.

    Why as a matter of interest do you think it's crazy that a person would not try and give an explanation, even if that explanation is the only evidence to convict himself. There are very good reasons we have the right to silence.


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    #49
    Barr
    Registered Users Posts: 6,992 ✭✭✭Barr


    ResearchWill wrote: »
    In drink driving it's very rare to take a statement. Also thankfully you do still in most cases have the right to silence. Even if he was asked questions I assume he just said no comment.

    We don't yet usually require citizens to actually convict themselves.

    Why as a matter of interest do you think it's crazy that a person would not try and give an explanation, even if that explanation is the only evidence to convict himself. There are very good reasons we have the right to silence.

    I just thought if you were going to be convicted in a court case you would have to submit some form of defence to the charges.

    I’m not familiar with the law but thought it would be logical for the prosecution to ask the accused if they were drink driving during the course of the trial?


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    #50
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    Barr wrote: »
    I just thought if you were going to be convicted in a court case you would have to submit some form of defence to the charges.

    I’m not familiar with the law but thought it would be logical for the prosecution to ask the accused if they were drink driving during the course of the trial?

    I understand what you are saying but the right to silence which includes the right not to get into the stand is a corner stone of ours and many other legal systems. Again it's not up to any person to prove innocence all people enter court innocent of the charge, it is up to the state to prove beyond a reasonable doubt that the person is guilty. Remember this is to protect you as much as anyone else.


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    #51
    bladespin
    Registered Users Posts: 7,334 ✭✭✭bladespin


    Barr wrote: »
    So am I right in thinking that Damien Kierans defence was based on him telling the judge he started drinking after crashing his car whilst sitting in the drivers seat waiting for the Gards to arrive :eek:

    The mind boggles :confused:

    No, he wouldn't have to say anything of the sort, nor defend himself, merely the fact that he could have been drinking after the crash would be enough.


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    #52
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    bladespin wrote: »
    No, he wouldn't have to say anything of the sort, nor defend himself, merely the fact that he could have been drinking after the crash would be enough.

    In this case it mattered not if he drank after, the issue was while he was in charge if the vehicle, according to AGS evidence he could not have intended to drive it.

    The hip flask defence has in any case been abolished for the most part.


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    #53
    DeeRottie
    Closed Accounts Posts: 88 ✭✭DeeRottie


    Jesus this is ridiculous. The car was an MPV while he was in control of it; surely the fact that the car couldn't start up and drive itself into the pole shows that although it is 'no longer' an MPV it was at the time of accident and when the accused was in control? Otherwise should the onus not be on the defense to prove someone else drove the car into the pole and afterwards the accused got into the car with no intent to drive? If you wanna twist the law on a technicality, surely you can do it on the other side too? Makes me sick. I cannot see how you could prove beyond a reasonable doubt that the accused was NOT driving drunk.


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    #54
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    DeeRottie wrote: »
    Jesus this is ridiculous. The car was an MPV while he was in control of it; surely the fact that the car couldn't start up and drive itself into the pole shows that although it is 'no longer' an MPV it was at the time of accident and when the accused was in control? Otherwise should the onus not be on the defense to prove someone else drove the car into the pole and afterwards the accused got into the car with no intent to drive? If you wanna twist the law on a technicality, surely you can do it on the other side too? Makes me sick. I cannot see how you could prove beyond a reasonable doubt that the accused was NOT driving drunk.

    If you read any one of the explanations you would know he could not be charged with drink driving because there was no one who saw him drive. So he was charged with being in control of a mpv with the intention to drive, you can not intend to drive a car that can't drive, the intention must be a future intention and can even be an intention to drive in a couple of hours. But it Is necessary to show the mpv can actually drive.


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    #55
    Guy:Incognito
    Registered Users Posts: 38,247 ✭✭✭✭Guy:Incognito


    Did they get a proper qualified opinion that the car wasnt drivable or just the gards opinion? Outside of "jesus you wouldnt be able to legally drive that yoke in the state its in" what gives the Gards opinion any weight?

    How bad can it have been if it was still running?


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    #56
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    Guy:Incognito wrote: »
    Did they get a proper qualified opinion that the car wasnt drivable or just the gards opinion? Outside of "jesus you wouldnt be able to legally drive that yoke in the state its in" what gives the Gards opinion any weight?

    How bad can it have been that it was still running?

    According to the report the Garda said the car had to be taken away by truck as it could not be driven, considering it was a head on I doubt if the engine even turned over.

    Even if they did get such an expert opinion then you would have an issue of two state witness contradicting each other it's not normal for the state to call a witness against their own witness.


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    #57
    Guy:Incognito
    Registered Users Posts: 38,247 ✭✭✭✭Guy:Incognito


    ResearchWill wrote: »
    considering it was a head on I doubt if the engine even turned over.

    The story says the car was still running.


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    #58
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    Guy:Incognito wrote: »
    The story says the car was still running.

    Sorry, you are correct must have been due to wheel damage or some other reason. But in any case it was the garda evidence it was not capable of driving.


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    #59
    mikemac1
    Closed Accounts Posts: 12,395 ✭✭✭✭mikemac1


    Barrister Irene Sands has some nerve to even use that as an argument

    But her client won so I guess she found a loophole so she was smart
    Should become a TD with those skills!


    Looks ridiculous, is there no common sense in law?


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    #60
    Seth Brundle
    Moderators, Politics Moderators Posts: 38,944 Mod ✭✭✭✭Seth Brundle


    mikemac1 wrote: »
    Barrister Irene Sands has some nerve to even use that as an argument
    She did her job and did it well. You can't fault her for using the law.
    Maybe ask why a case was taken when this outcome was likely. Why wasn't the driver charged for something else like dangerous driving?


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    #61
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    mikemac1 wrote: »
    Barrister Irene Sands has some nerve to even use that as an argument

    But her client so I guess she found a loophole so she was smart
    Should become a TD with those skills!


    Looks ridiculous, is there no common sense in law?

    To be convicted of drink driving in a sample case, there must be evidence of driving within 3 hours of the sample. That is logical can't be convicted of drink driving if someone saw you driving say yesterday and sample take 24 hours later. As no evidence of him driving within the 3 hours then can't be convicted of that.

    So next option is drunk in charge, but for that there needs to be an intention to drive, again that is logical, say you drive to local you have arranged to meet your wife to drive you both home you are still legally in charge of the car even if not sitting in it, but as you can prove you have no intention to drive you are ok. The intention to drive is normally a proof put on the accused. But in this case the Garda in cross I imagine admitted the car could not drive so no intention.


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