sample lost

rhc2s4lj5p0xu9

if a blood and/or urine sample from a drinking driver is lost would a drink driving charge be thrown out.? Not looking for advice it is a curiosity

talla10

Yes unless the state wished to proceed with a prosecution under Section 4(1) RTC 2010 which is entirely dependent on Gardai's observations and opinion evidence which is rare

Sierra Oscar

How do you mean lost? Do you mean prior to the sample being sent to the MBRS for analysis? It is my understanding that the sample is used in its entirety / disposed of by the MBRS when a Certificate of Analysis is issued.

Lenar3556

Camille Most Bum wrote: »

if a blood and/or urine sample from a drinking driver is lost would a drink driving charge be thrown out.? Not looking for advice it is a curiosity

Lost or microwaved?

rhc2s4lj5p0xu9

Lenar3556 wrote: »

Lost or microwaved?

??

rhc2s4lj5p0xu9

Sierra Oscar wrote: »

How do you mean lost? Do you mean prior to the sample being sent to the MBRS for analysis? .

Yes

Deseras

The garda lost 20,000 euro from my trial
About 5 years ago so the judge had to throw it out they believe some garda took it from everdence room at garda station

Sierra Oscar

Camille Most Bum wrote: »

Yes

Not a hope of a successful conviction if that is the case.

hurikane

Deseras wrote: »

The garda lost 20,000 euro from my trial
About 5 years ago so the judge had to throw it out they believe some garda took it from everdence room at garda station

Tell us more.....

Peregrinus

If the sample is lost prior to being sent for analysis, then there will be no prosecution based on the sample because the guards will never know whether the blood/alcohol level in the sample was, or was not, over the limit.

As talla10 says, there could still be a prosecution under RTC 2010 s. 4(1), which doesn't require any sample to be taken and doesn't require proof of any particular blood/alcohol level. If there were to be a prosecution under that provision, the the fact that a sample had been taken but never processed wouldn't get the case thrown out; it would be irrelevant.

Claw Hammer

Peregrinus wrote: »

If the sample is lost prior to being sent for analysis, then there will be no prosecution based on the sample because the guards will never know whether the blood/alcohol level in the sample was, or was not, over the limit.

As talla10 says, there could still be a prosecution under RTC 2010 s. 4(1), which doesn't require any sample to be taken and doesn't require proof of any particular blood/alcohol level. If there were to be a prosecution under that provision, the the fact that a sample had been taken but never processed wouldn't get the case thrown out; it would be irrelevant.

The fact that a sample which might have exonerated the defendant was taken and not adduced in evidence would lead to a Braddish argument that there was a failure to seek out and preserve all relevant evidence.
It would be most unlikely a conviction could be procured if relevant evidence was not preserved. The fact that the prosecution don't intend to rely on it was not accepted in Braddish.

Sierra Oscar

Claw Hammer wrote: »

The fact that a sample which might have exonerated the defendant was taken and not adduced in evidence would lead to a Braddish argument that there was a failure to seek out and preserve all relevant evidence.
It would be most unlikely a conviction could be procured if relevant evidence was not preserved. The fact that the prosecution don't intend to rely on it was not accepted in Braddish.

Yeah there isn't a hope that the case wouldn't be struck out or just outright dismissed.

The defendant will naturally argue that the specimen, if analysed, would demonstrate that they were not intoxicated at the time of driving. Prosecution is immediately holed beneath the waterline considering the evidence has been lost due to negligence.

Witcher

Sierra Oscar wrote: »

Yeah there isn't a hope that the case wouldn't be struck out or just outright dismissed.

The defendant will naturally argue that the specimen, if analysed, would demonstrate that they were not intoxicated at the time of driving. Prosecution is immediately holed beneath the waterline considering the evidence has been lost due to negligence.

It would be a bit premature to state that the sample was lost through negligence without knowing what the circumstances were. Once the sample is posted then it's fate is out of the hands of the Gardai.

Lenar3556

Witcher wrote: »

It would be a bit premature to state that the sample was lost through negligence without knowing what the circumstances were. Once the sample is posted then it's fate is out of the hands of the Gardai.

Agree, but for all intents and purposes, once the sample is lost it’s a dead duck.

Peregrinus

Isn't it the practice, when a blood or urine sample is taken, for the suspect to be given a second sample, taken on the same occasion, so he can have it independently tested if he wants?

If so, even if the guards don't test their sample and prosecute under s.4(1) on the basis of witness evidence as to the defendant's drink-induced incapacity, the defendant would be able to have his own sample tested, and (assuming the results show low or nil alcohol) put that in evidence to show that the guards' impression that he under the influence of acohol to such an extent as to be incapable of having proper control must be incorrect?

(Of course, the defendant may have reason to think that if he has his sample tested it won't show a low blood/alcohol level. In which case the rational strategy is not to get it tested — indeed, not to mention it at all.)

GM228

talla10 wrote: »

Yes unless the state wished to proceed with a prosecution under Section 4(1) RTC 2010 which is entirely dependent on Gardai's observations and opinion evidence which is rare

Peregrinus wrote: »

As talla10 says, there could still be a prosecution under RTC 2010 s. 4(1), which doesn't require any sample to be taken and doesn't require proof of any particular blood/alcohol level. If there were to be a prosecution under that provision, the the fact that a sample had been taken but never processed wouldn't get the case thrown out; it would be irrelevant.

This is not correct, there still must be evidence of an intoxicant in your system, there must be a sample taken for a successful charge.

Peregrinus wrote: »

Isn't it the practice, when a blood or urine sample is taken, for the suspect to be given a second sample, taken on the same occasion, so he can have it independently tested if he wants?

Not practice, rather a legal requirement to offer the opportunity for the accused to take one of the two samples.

Peregrinus

GM228 wrote: »

This is not correct, there still must be evidence of an intoxicant in your system, there must be a sample taken for a successful charge

We're in the realms of the hypothetical here, since I think a s. 4(1) prosecution following the loss of a sample is very unlikely. But, while there does have to be evidence that the defendant is under the influence of an intoxicant, I don't see any provision to the effect that that evidence must take the form of a sample analysis. You could have evidence of the consumption of alcohol - either the defendant's confession, or third party witness evidence - plus evidence from the guards e.g. of the smell of alcohol, the uncapped bottle in the passenger seat, the defendant's slurred speech, inability to focus or to to walk in a straight line, etc.

Back in the dear dead days beyond recall, driving an MPV in a public place while under the influence of intoxicating liquor to such an extent as to be incapable of having proper control contrary to RTA 1961 s. 49 was routinely proven without blood or urine analysis. Is there some provision that now prevents that?

GM228

Peregrinus wrote: »

We're in the realms of the hypothetical here, since I think a s. 4(1) prosecution following the loss of a sample is very unlikely. But, while there does have to be evidence that the defendant is under the influence of an intoxicant, I don't see any provision to the effect that that evidence must take the form of a sample analysis. You could have evidence of the consumption of alcohol - either the defendant's confession, or third party witness evidence - plus evidence from the guards e.g. of the smell of alcohol, the uncapped bottle in the passenger seat, the defendant's slurred speech, inability to focus or to to walk in a straight line, etc.

Back in the dear dead days beyond recall, driving an MPV in a public place while under the influence of intoxicating liquor to such an extent as to be incapable of having proper control contrary to RTA 1961 s. 49 was routinely proven without blood or urine analysis. Is there some provision that now prevents that?

Indeed Peregrinus I stand corrected, yes as you note other forms of evidence are accepted as admissible evidence of intoxication.

Claw Hammer

Peregrinus wrote: »

Back in the dear dead days beyond recall, driving an MPV in a public place while under the influence of intoxicating liquor to such an extent as to be incapable of having proper control contrary to RTA 1961 s. 49 was routinely proven without blood or urine analysis. Is there some provision that now prevents that?

The reason for the introduction of the blood levels offence was because of the diffficulty of proving the offence of drunk driving simpliciter. The accused would walk out of the Garda Station, go straight to a doctor and later have the doctor testify that there was nothing wrong at all and the accused was well capable of controlling a car. The DJs had to resolve conflicts of evidence and gave the benefit of the doubt to the accused.
In a situation where a sample is taken and lost, an attempt to prove the alternative offence by way of observation would still mean that relevant evidence had not been preserved.

Victor

Lenar3556 wrote: »

Lost or microwaved?

IrvingRFeldman wrote: »

??

There was a case where it was suggested (found not guilty) that An Post staff microwaved a urine sample to foil its testing. https://www.irishtimes.com/news/crime-and-law/courts/post-office-manager-denies-tampering-with-urine-sample-1.1610884 and https://www.rte.ie/news/2013/1205/491124-kevin-rogers-roscommon/ and https://www.irishtimes.com/news/crime-and-law/courts/circuit-court/post-office-manager-accused-of-tampering-with-urine-sample-found-not-guilty-1.2152003

Witcher wrote: »

It would be a bit premature to state that the sample was lost through negligence without knowing what the circumstances were. Once the sample is posted then it's fate is out of the hands of the Gardai.

Then maybe the Garda shouldn't give it to An Post.

Witcher

Victor wrote: »

There was a case where it was suggested (found not guilty) that An Post staff microwaved a urine sample to foil its testing. https://www.irishtimes.com/news/crime-and-law/courts/post-office-manager-denies-tampering-with-urine-sample-1.1610884 and https://www.rte.ie/news/2013/1205/491124-kevin-rogers-roscommon/ and https://www.irishtimes.com/news/crime-and-law/courts/circuit-court/post-office-manager-accused-of-tampering-with-urine-sample-found-not-guilty-1.2152003
Then maybe the Garda shouldn't give it to An Post.

Can you suggest another way of getting the sample to the MBRS?

Victor

Witcher wrote: »

Can you suggest another way of getting the sample to the MBRS?

Dedicated courier(s), inside or outside the Garda?

Sierra Oscar

Witcher wrote: »

It would be a bit premature to state that the sample was lost through negligence without knowing what the circumstances were. Once the sample is posted then it's fate is out of the hands of the Gardai.

If the sample was lost due to no fault of an individual Garda then no doubt there wouldn't be any disciplinary consequences, and rightly so.

I'm more talking about the consequences in court. An Garda Síochána is responsible for the chain of custody for specimens - irrespective of whether it was lost in the post, or at the MBRS or whatever. The court holds Gardaí responsible for the chain of custody, if the specimen is lost then a conviction will be impossible to secure. The prosecution will be held responsible for the loss of the specimen irrespective of the circumstances of the loss.

Lenar3556

Sierra Oscar wrote: »

If the sample was lost due to no fault of an individual Garda then no doubt there wouldn't be any disciplinary consequences, and rightly so.

I'm more talking about the consequences in court. An Garda Síochána is responsible for the chain of custody for specimens - irrespective of whether it was lost in the post, or at the MBRS or whatever. The court holds Gardaí responsible for the chain of custody, if the specimen is lost then a conviction will be impossible to secure. The prosecution will be held responsible for the loss of the specimen irrespective of the circumstances of the loss.

There will be no prosecution at all - because there is isn’t evidence sufficient of drink driving to charge the individual. Similar outcome to the sample being returned with an alcohol level below the prescribed level or an otherwise inconclusive result.

Peregrinus

This. If the sample is lost before analysis, there will be no charge, no summons, no trial, no day in court - nothing. And this is true regardless of whether the loss of the sample is attributable to someone's negligence, or to any other cause. How the sample was lost is completely irrelevant.