'Hip-flask defence' for drink driving

The Big Red Button

I've just read an article where a man who knocked down a pedestrian, and was over the drink-driving limit when breathalysed, was cleared by using the 'hip-flask defence.' He and his uncle (who is an ex-garda) claim that his uncle gave him whiskey to settle him after the incident, but before he was breathalysed.

He didn't tell the investigating Gardaí about this, until he'd actually failed the test - at first, he only admitted to having a glass of wine a few hours earlier.

Full story is here.

From the article:

District Court judge Eugene O'Kelly said what was "particularly appalling in this case is that... I don't accept the evidence of the uncle that he is not aware of the hip flask defence."

...

Judge O'Kelly said he was "gravely concerned there was cuteness and conniving between the uncle and his nephew".


...


Judge O'Kelly said he had to accept that the whiskey had put the accused over the limit as the State could not dispute the evidence.

I really don't understand this. Why can the State not dispute the evidence? Because the uncle is an ex-Garda? ... surely this makes the whole thing even more dodgy, seeing as the uncle would have doubtlessly known that the driver would shortly be breathalysed?

How can the judge get up there and make it clear that he doesn't believe the mens' story - but still let them away with it? It really makes you lose faith in the system.

The main facts of the case are that he was driving, he hit a pedestrian, and he failed a breathalyser test shorter afterwards. Surely these facts, i.e. the actual indisputable evidence, should hold more weight than the statements of those involved - whether one of the people involved was an ex-Garda or not!

antodeco

/takes note for "research purposes"

In all seriousness though, the judge had to throw it out. He knew they were lying, but the evidence didnt allow him to prosecute (well potential evidence). Im just trying to figure out if there was a blood test taken? They Gardai could have asked how much of the whiskey he drank and when. From this, and blood analysis, they could find when and how much he had drank.

Why not give him points for "reckless driving" and/or "driving with undue care and attention". He knocked somebody down FFS! I doubt the pedestrain was running down the middle of the road

Poor Uncle Tom

It just highlights an antiquated justice system run 'by the boys for the boys'.

girl in the striped socks

What a nasty piece of work.
Jesus if I hit a cat the last thing on my mind would be "steadying" my nerves with a drink. I'd be more likely to puke than want a drink tbh.
The justice system is there in all it's glory for people like him to abuse.
In one sense I can't blame him for chancing his arm & getting away with it, if a cock & bull story like steadying nerves gets someone off a drink driving rap then you know what? Let them off. Until there is a radical overhaul in the justice system then scrotes like him will continue to find loopholes.

inforfun

Dont know what the limit is in these measurements:

The result showed 37mg of alcohol per 100 millilitres of breath

But if the limit is 36, i can live with it.

But then again, i am a cynical bastard so i dont believe the story of having a small whiskey to settle down after the accident. He was on the piss before and his last wasnt 4 or 5 hours ago i reckon.

The Big Red Button

What's to stop anyone at all driving around drunk, keeping a empty naggin of whiskey in the car. And then, if they get in an accident, tell the guards they only just downed the naggin, after the accident, to settle their nerves.

I sincerely doubt any normal person would get away with it. So why did he?

Is it because the other witness - his uncle - is an ex-Garda? If so, how does the law provide for this? Particularly seeing as his uncle most certainly should have known better ... if anything, from a logical point of view, surely the fact that he's an ex-Garda should go against their case!

Poor Uncle Tom wrote: »

It just highlights an antiquated justice system run 'by the boys for the boys'.

The thing is, though, why is the judge making it perfectly clear that he doesn't really believe their story? That's what I don't understand. Is there some obscure loophole that means he can actually, legally, get away with this? If so, I wonder where judges would draw the line in such cases.

MarkR

Drink driving suspicion? Better have a drink to calm your nerves. I've actually wondered about this before, didn't know it had it's own term. Crash car. Whip bottle out from glove box and go flash dance on it!

http://www.popeighties.com/storage/flashdance.jpg?__SQUARESPACE_CACHEVERSION=1270967148116

d9oiu2wk07blr5

Many a year ago I heard a similar story from a solicitor about the "hip flask defence", about someone that he knew was involved in an RTA outside his house while drunk driving got off because he gave him a shot of whiskey to "steady his nerves".

In cases like this anyone who conspires to pervert the course of justice should also face the full rigors of the law!

Feathers

chatterpillar wrote: »

I've just read an article where a man who knocked down a pedestrian, and was over the drink-driving limit when breathalysed, was cleared by using the 'hip-flask defence.' He and his uncle (who is an ex-garda) claim that his uncle gave him whiskey to settle him after the incident, but before he was breathalysed.

He didn't tell the investigating Gardaí about this, until he'd actually failed the test - at first, he only admitted to having a glass of wine a few hours earlier.

Full story is here.

From the article:




I really don't understand this. Why can the State not dispute the evidence? Because the uncle is an ex-Garda? ... surely this makes the whole thing even more dodgy, seeing as the uncle would have doubtlessly known that the driver would shortly be breathalysed?

How can the judge get up there and make it clear that he doesn't believe the mens' story - but still let them away with it? It really makes you lose faith in the system.

The main facts of the case are that he was driving, he hit a pedestrian, and he failed a breathalyser test shorter afterwards. Surely these facts, i.e. the actual indisputable evidence, should hold more weight than the statements of those involved - whether one of the people involved was an ex-Garda or not!

It is ridiculous I know, but I guess the sworn statement of two people saying 'this is exactly what happened' carries weight unless proven false' - the are facts are circumstantial in that they don't disprove their story. The dodgiest thing is how it differs from his statement to the Gardaí.

Theta

If the state couldn't prove that he didn't have the whiskey then the judge had to throw it out.

You cant just discount evidence because you think someone may be lying about it, you have to prove a sworn statement wrong.

SiegfriedsMum

Devon Famous Zeppelin wrote: »

Many a year ago I heard a similar story from a solicitor about the "hip flask defence", about someone that he knew was involved in an RTA outside his house while drunk driving got off because he gave him a shot of whiskey to "steady his nerves".

In cases like this anyone who conspires to pervert the course of justice should also face the full rigors of the law!

The current laws don't discriminate, and preverting the course of law is a crime in all cases, and not just cases like these.

The reason we have courts is to look at the evidence, and so not to leave it up to those who want to make assumptions about evidence or assumptions about individuals.

Think the uncle being an ex guard is skewing people's opinions.. If you're well shaken, it's normal enough to have a drink. I've had small accidents on the motorbike (happens constantly in Hanoi) and drive home at 5mph and have a beer.

After a crash at the scene is different though and is pretty weird. But plausible and if it can't be disproved, then that's the law.

Uriel.

Can't understand the criticism of the Judge in this case.

Evidence before the judge was that a man failed a breathalyser test but in the moments before failing, whilst not driving, he drank a volume of alcohol of relatively high percentage. This is his testimony and has been verified by a witness. Gardai, obviously not on the scene at the time could not dispute this and clearly there were no other witnesses to suggest otherwise.

Judge has no choice to rule in the man's favour. In his heart of hearts he knows the uncle, knowing the tricks, engineered the "get out of jail free clause" but it's not what you know it's what can be proven in a court of law. Judges face situations like this everyday in all manner of cases

d9oiu2wk07blr5

SiegfriedsMum wrote: »

The current laws don't discriminate, and preverting the course of law is a crime in all cases, and not just cases like these.

The reason we have courts is to look at the evidence, and so not to leave it up to those who want to make assumptions about evidence or assumptions about individuals.

I know that....in the case that I was talking about, the solicitor knew that he was drunk driving and "officially" he gave him a shot to steady his nerves. By doing he knew that he wouldn't be convicted for drunk driving. I find it hard to believe that a garda wouldn't be aware of the hip flask defence....like how many roadside checks or drink driving cases would he have been involved in over the years? It should be a offence in itself to give anybody involved in a RTA alcohol - it's that simple.

Wasn't this the case where rather than dialling 999 and waiting for an ambulance they stuck the victim in a car and brought him to a hospital - it just beggars belief!

daenerysstormborn3

Unfortunately this shows the serious flaws in our legal system and the mistakes often made by the gardai when trying to prosecute someone for drink driving. It is a very common occurence for procedural errors to be made by the gardai when trying to prosecute someone for drink driving and it has nothing to do with the fact that this man's uncle is an ex-garda.

spank_inferno

Ireland's shambolic legal system is one step away from this:

Chewbacca Defense

If Chewbacca lives on Endor, you must acquit!

Uriel.

pixiebean22 wrote: »

Unfortunately this shows the serious flaws in our legal system and the mistakes often made by the gardai when trying to prosecute someone for drink driving. It is a very common occurence for procedural errors to be made by the gardai when trying to prosecute someone for drink driving and it has nothing to do with the fact that this man's uncle is an ex-garda.

What was the Gardai mistake in this case.?

MagicSean

For the hip flask defence to work it is up to the defence to prove the driver would not have been over the limit anyway. As this driver was only barely over the limit this would not have been difficult.

ronan45

What about the "spliff defence"

Ill be using the "Epeleptic fit" defence myself seems more plausible:cool:

MagicSean

pixiebean22 wrote: »

Unfortunately this shows the serious flaws in our legal system and the mistakes often made by the gardai when trying to prosecute someone for drink driving. It is a very common occurence for procedural errors to be made by the gardai when trying to prosecute someone for drink driving and it has nothing to do with the fact that this man's uncle is an ex-garda.

What errors are you talking about?

The Big Red Button

MagicSean wrote: »

For the hip flask defence to work it is up to the defence to prove the driver would not have been over the limit anyway. As this driver was only barely over the limit this would not have been difficult. The uncle should have been charged with frustrating a prosecution though.

Yeah but the point is that there's no real proof that the whiskey was ever consumed. (This only came up AFTER he failed the test.)

So, say he never had any whiskey after. And the breathalyser was done a couple of hours later. He'd have been well over the limit at the time of the accident.

hardCopy

It should really be illegal to consume alcohol in the aftermath of a crash until you have been cleared by the Gardai, it should also be illegal to give someone a drink after a crash.

The Big Red Button

hardCopy wrote: »

It should really be illegal to consume alcohol in the aftermath of a crash until you have been cleared by the Gardai, it should also be illegal to give someone a drink after a crash.

Exactly what I'm thinking. It's common sense, and would get rid of this loophole. I'm just amazed that this isn't the case already.

Raiser

Whoa.

Hang on just a minute.

- After knocking down a pedestrian the driver, Mark Foley, the most recent Limerick serious sports star to knock someone down, failed to report the incident to the Gardaí and instead consulted his Uncle who subsequently drove what AA Routeplanner says is a ~106km, 1.5 hr trip from Ennistymon Co. Clare to give him a drop of whiskey because he "wasn't looking well" and "sick in his stomach".

This drop of whiskey also conveniently allowed this legend to get away scot free.

The Uncle who was called in specifically to advise on this accident stated he didn't know anything about the hip-flask defence, despite being an ex-garda in Ireland where drink driving is a national sport......

Hopefully people won't forgive and forget the manner in which these two conducted themselves on that night.

Alan_P

Uriel. wrote: »

What was the Gardai mistake in this case.?

Not maintaining control and visibility of the guy after he failed the breathalyzer test.

The correct response to the claims about the whisky miniature should have been for the arresting Guard to step back into the witness box and tell the judge that those claims were clearly perjurious, because he had kept the defendant in sight at all times after the arrest and could state without qualification that the whisky consumption had not occured.

MagicSean

chatterpillar wrote: »

Yeah but the point is that there's no real proof that the whiskey was ever consumed. (This only came up AFTER he failed the test.)

So, say he never had any whiskey after. And the breathalyser was done a couple of hours later. He'd have been well over the limit at the time of the accident.

No he would have still been just over the limit. The breathalyser has to be done within three hours of the driving.

MagicSean

chatterpillar wrote: »

Exactly what I'm thinking. It's common sense, and would get rid of this loophole. I'm just amazed that this isn't the case already.

There is an offence for attempting to frustrate a prosecution. However because the alcohol content of the mans breath was so low anyway it would not have been appropriate here.

MagicSean

Alan_P wrote: »

Not maintaining control and visibility of the guy after he failed the breathalyzer test.

The correct response to the claims about the whisky miniature should have been for the arresting Guard to step back into the witness box and tell the judge that those claims were clearly perjurious, because he had kept the defendant in sight at all times after the arrest and could state without qualification that the whisky consumption had not occured.

He didn't stay at the scene so how could they have had control of him. He was already convicted of the hit and run aspect of the case. The whiskey was given to him before he was breathalysed by the Gardai.

SniperSight

The problem here is that he presented himself well after the incident happened, after driving the pedestrian to hospital.
The Guards made no error because it wasn't reported on the spot. So by the time they knew about it, it was easy for the 'hip-flask' defence to work, cause so much time had passed.
Obviously its a sham, and reprehensible, but I've read alot of judgements and sentences from Judge O' Kelly, and always think he doesn't buy bull****.
He didn't want to let it go, but he didn't havr a choice, he can't discount the statements. Him personally knowing they're liars isn't proof to convict.

Tasden

This may be a stupid question as I have no understanding of how it all works but can they not make a law that makes it an offence to consume alcohol (regardless of the reason) at the scene of an accident otherwise you will be charged with tampering with evidence? That way if they try using the 'hip flask defence' they get charged for it. Or am I way off the mark?

Guy:Incognito

Deleted User wrote: »

Think the uncle being an ex guard is skewing people's opinions.. If you're well shaken, it's normal enough to have a drink. I've had small accidents on the motorbike (happens constantly in Hanoi) and drive home at 5mph and have a beer..

People are right to be skeptical. Listening to it on newstalk earlier they said the uncle asked him if he had been breathalised yet. He says no and the uncle goes "well here you go, have a nip of this". Thats clearly a case of the uncle using his knowledge as a gard to create doubt.

Cee-Jay-Cee

I read the story too and I would bet a lot of money the whole thing is lies. The driver was drunk or had drink taken. The uncle being an ex guard knew the system and went as an alibi saying he gave him a whiskey in the hospital. The driver tried to re-inforce the story by saying he didn't tell the guards as he didn't want to get the uncle in trouble. The whole thing is a bunch of lies and both should be prosecuted for perjury. Who carries a minature whiskey in their pocket. Why would a ex guard knowing the system offer him a drink before a breath test. The truth is, there was no whiskey and the uncle probably wasn't even near him or the hospital.

daenerysstormborn3

MagicSean wrote: »

What errors are you talking about?

I'm not going to spell it out. I have seen many many drink driving cases thrown out over procedural errors by the gardai.

jaykay74

All very Irish

Limerick91

jaykay74 wrote: »

All very Irish

Well it did happen in Ireland so it would be very Irish

Odysseus

While it is clear that the system has been abused here, I can't get over the amount of people saying that the judge should have acted differently. How could he? I can't see any other option that the judge could have taken.

Thankfully the judge can only act on the evidence presented in court, he may know someone is telling lies; but we cannot have a system where a judge can past a sentence based on what he thinks even if he is correct.

MagicSean

pixiebean22 wrote: »

I'm not going to spell it out. I have seen many many drink driving cases thrown out over procedural errors by the gardai.

Right but in this particular case what error are you referring to?

Howjoe1

Firstly, the judge made the only decision he could have in the circumstances. No fault on the judge here.

But could the uncle not be charged with attempting to pervert the court of justice, particularly giving his background and knowledge of correct procedure in such matters?

Alfred123

gross miscarriage of Justice. If i were the person run over by this drunken knacker, i'd get Justice one way or other. No way would he get away with this ..

davet82

i'm gonna always carry a hip-flask just in case... :rolleyes:


unreal

Stovepipe

Did it say anywhere if the victim is suing for damages, after having been knocked down? Apart from that, these two beauts will be at the forefront of garda attention from now on. I bet they'll play the long game and get them again.

regards
Stovepipe

Boombastic

davet82 wrote: »

i'm gonna always carry a hip-flask just in case... :rolleyes:


unreal

I just filled up my glove box. Whiskey, gin, vodka..:cool:

King Of Wishful Thinking

davet82 wrote: »

i'm gonna always carry a hip-flask just in case... :rolleyes:

unreal

Nah, just do this:

https://www.youtube.com/watch?v=94islUdCLaE

MagicSean

Alfred123 wrote: »

gross miscarriage of Justice. If i were the person run over by this drunken knacker, i'd get Justice one way or other. No way would he get away with this ..

He has been convicted already for the accident. He was found not guilty of the drink driving alone. And if his uncle had indeed given him a drink the low reading means he was likely not drink driving.

MagicSean

davet82 wrote: »

i'm gonna always carry a hip-flask just in case... :rolleyes:


unreal

I think you are misunderstanding the decision. You cannot just take a swig and say you weren't drunk. You have to be able to prove that the drink you took after the accident was what put you over the limit. In this case the driver was only 2mg over the limit which would probably be equivalent to less than half a pint so it was easy to prove that the whiskey put him over and he was under the limit at the time of the accident.

Potential-Monke

Just want to explain a couple of things here.

In a Criminal Court, the offence has to be proven "beyond a reasonable doubt". A reasonable doubt would include the hipflask defence. So, it can't be proven beyond a reasonable doubt, so it has to be thrown out. It's different in a civil case, where it's the balance of probabilities.

The time of the person being knocked down was around 2.20am, and he was breathalised at around 3.30am, giving the uncle enough time to drive from home to meet him and give him the Irish coffee. This would be enough to have put him over the limit (35 is the limit, he came back at 36, so one can assume he was under the limit before consuming the whiskey).

Regardless if the uncle knew of the hipflask defence or not, it's not illegal just yet. By the uncle claiming he did not know of the defence, he is not committing perjury (again, beyond a reasonable doubt). Maybe this is a good oppertunity for the Government to introduce new regulations that prevent this, or make people amenable for this, in the future.

Drink driving is one of the hardest cases to prove in court, and has 50+ points that need to be proven before a conviction can be judged. Missing just one of these points can lead to a dismissal of the case, and solicitors are well aware of these. Many, many cases get thrown out every week. I personally believe that it should be simplified, but it never will be for prejudicial reasons (invented by solicitors).

Also, regardless of taking breath or urine or blood, the limits for each equate to the same, so even if they had taken blood/urine (which, by the way can only be done if the intoxilyser isn't working/is not available, or if there is a belief that other intoxicants are present in the system), he would still have come back under.

I'm not defending his actions, he was convicted of leaving the scene of an accident and given 12 months off the road, but he used the legal loopholes that everyone uses. I doubt this would have even made the papers had the uncle not been a Garda or he not being an ex-GAA star.

YFlyer

Is it not illegal to drink alcohol in public?

Fuinseog

chatterpillar wrote: »

I've just read an article where a man who knocked down a pedestrian, and was over the drink-driving limit when breathalysed, was cleared by using the 'hip-flask defence.' He and his uncle (who is an ex-garda) claim that his uncle gave him whiskey to settle him after the incident, but before he was breathalysed.

He didn't tell the investigating Gardaí about this, until he'd actually failed the test - at first, he only admitted to having a glass of wine a few hours earlier.

Full story is here.

From the article:




I really don't understand this. Why can the State not dispute the evidence? Because the uncle is an ex-Garda? ... surely this makes the whole thing even more dodgy, seeing as the uncle would have doubtlessly known that the driver would shortly be breathalysed?

How can the judge get up there and make it clear that he doesn't believe the mens' story - but still let them away with it? It really makes you lose faith in the system.

The main facts of the case are that he was driving, he hit a pedestrian, and he failed a breathalyser test shorter afterwards. Surely these facts, i.e. the actual indisputable evidence, should hold more weight than the statements of those involved - whether one of the people involved was an ex-Garda or not!

if the EU was in charge of our judicial system things would be different.

The Big Red Button

MagicSean wrote: »

I think you are misunderstanding the decision. You cannot just take a swig and say you weren't drunk. You have to be able to prove that the drink you took after the accident was what put you over the limit. In this case the driver was only 2mg over the limit which would probably be equivalent to less than half a pint so it was easy to prove that the whiskey put him over and he was under the limit at the time of the accident.

Potential-Monke wrote: »

The time of the person being knocked down was around 2.20am, and he was breathalised at around 3.30am, giving the uncle enough time to drive from home to meet him and give him the Irish coffee. This would be enough to have put him over the limit (35 is the limit, he came back at 36, so one can assume he was under the limit before consuming the whiskey).

Right, but the thing is, how can they prove that the uncle actually gave him any whiskey?

Before taking the breathalyser, the driver told the Gardaí that he hadn't been drinking. It was only after he came in over the limit, that this story about the uncle giving him whiskey in the hospital came up.

I mean, really. You are in hospital with your nephew, who's just knocked someone down, you're really going to think it's a good idea to give him whiskey? Seems absolutely bizarre.

If he didn't actually drink any whiskey - only the two mens' word for it - he must have been definitely over the limit at the time of the accident. Not just on the limit.

I'm just shocked that such a loophole exists, that apparantly it actually is perfectly legal to drink immediately after an accident and before being breathalysed. I hope that, at least, this case will result in the issue being addressed.

Potential-Monke

He could have used the excuse of not remembering that he drank it. Yes, it sounds like lies, and a cover-up, but i'm sure using the excuse of stress and shock he would/has got away with it. It is indeed a loophole, but until it's covered by law it can be used and abused.

xperi

if you do get stopped with a "few" on board. delay blowing in the bag for as long as possible argue with the guard if necessary, then just before he arrests you , say u want a blood test instead, hopefully its a bit of a drive to the station & in the middle of the night, so between getting stopped & eventually giving a sample to a doctor this could be up to 2 hours if ur lucky so then ur result might be negative by then, also use a respiratory complaint for blowing in to the bag. try & fail as many times as possible as this eats up time, good luck guys