'Hip-flask defence' for drink driving

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

Milk & Honey

xperi wrote: »

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

You do not have an option of a blood test. The demand for a roadside sample has no bearing on the eventual finding of being above the limit. It merely grounds the opinion that an offence may have been committed. The penalty for refusing to give a breath sample on the machine is 4 years. To succeed in a defence due to a medical condition, a doctor would have to come to court and give evidence of the condition which the defendant claims to be suffering from.

MagicSean

xperi wrote: »

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

It's an offence to fail to give a roadside breath test. You do not have a choice.

You cannot argue with the Garda about providing a roadside sample. It is considered a refusal.

You cannot choose not to give a breath sample in the station, it is up to the Garda what method to use. If you refuse you are committing an offence.

The blood test gives a higher reading than the breath test because it is much more accurate and provides a lower margin of error adjustment.

You are only entitled to one try at "the bag". If you don't do it it's considered a failure.

Your post is one of the stupidest posts I have ever read on boards. It's as bad as, if not worse than, the freeman bull**** that gets spouted.

rainbowtrout

xperi wrote: »

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

What a stupid post. How about not drinking and driving and putting yourself and other people at risk instead of trying to avoid getting caught?

Wildlife Actor

Tasden wrote: »

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?

You're bang on the mark. The Oireachtas should have closed this years ago. Consumption of alcohol within 3 hours of an accident or a Garda arrest should be an offence it itself (just like refusing to give a sample).

One of the main problems with drink driving prosecutions is that the mandatory minimum penalties are often completely disproportionate. Driving at speed in a built up area and hitting something/someone vs. driving home on a wide quiet road at 15 kmph. Same alcohol reading, same penalty, which could be a year ot 2 off the road. That's why judges "play the game" with these technicalities.

Wanderer2010

chatterpillar wrote: »

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

Normal person? He is a normal person! I dont understand why people have this guy up on a pedestal, was he handy with a sloithar back in the day? That often elevates the status of a person from 'normal' to celebrity but I have never heard of this guy before and Im a big GAA fan so certainly he is only a normal person in my eyes..

MagicSean

Love nor Money wrote: »

You're bang on the mark. The Oireachtas should have closed this years ago. Consumption of alcohol within 3 hours of an accident or a Garda arrest should be an offence it itself (just like refusing to give a sample).

The law is sufficient as it stands. If the hip-flask defence is used, there is an onus on the defence to prove the consumption of alcohol after an accident is the only reason the driver was over the limit. This is quite a difficult task. The reason it worked in this case is because the driver was only barely over the limit.

The real issue in this case is the reliability of the testimony regarding the consumption of alcohol. If the judge did not believe the testimony he should have found the man guilty. I think in this case the judge was wrong.

Love nor Money wrote: »

One of the main problems with drink driving prosecutions is that the mandatory minimum penalties are often completely disproportionate. Driving at speed in a built up area and hitting something/someone vs. driving home on a wide quiet road at 15 kmph. Same alcohol reading, same penalty, which could be a year ot 2 off the road. That's why judges "play the game" with these technicalities.

The penalty for drink driving may be the same but the driver can also face charges of dangerous driving and other offences.

Feathers

MagicSean wrote: »

The law is sufficient as it stands. If the hip-flask defence is used, there is an onus on the defence to prove the consumption of alcohol after an accident is the only reason the driver was over the limit. This is quite a difficult task. The reason it worked in this case is because the driver was only barely over the limit.

The real issue in this case is the reliability of the testimony regarding the consumption of alcohol. If the judge did not believe the testimony he should have found the man guilty. I think in this case the judge was wrong.

Surely that's what it comes down to though. The judge is unlikely to find a man guilty in spite of his testimony when it's corroborated by someone else, as it is pausible that he was under the limit at the time of the accident.

It's also plausible that he didn't drink from a hipflask at all, meaning that he was over the limit at the time of the accident. If people are willing to lie and get others to lie regarding this, surely the law isn't sufficient as it stands.

Making it an offence to drink after an accident before a breathalyser test closes a loophole in our current system — I'm not sure why you wouldn't want to do this?

mooverlive

not a good week for that family fairly controversial limerick co football final woohooo