Former journalist Ian Bailey’s conviction for drug driving was flawed as he was not properly tested for traces of cannabis in his system after being arrested on suspicion of drink driving, his barrister has told an appeal hearing.
Alan O’ Dwyer BL said Mr Bailey’s conviction for drug driving was based on traces of cannabis being found in a blood sample he gave at Bantry Garda station on August 25th, 2019. He said the blood sample was taken on foot of an oral fluid test which was not conducted properly.
Mr O’Dwyer said the oral test taken by Garda Fintan Coffey involved using a Drager Drugtest 5000, for which it is specified that the person being tested must not have had any food, chewing gum or tobacco for 10 minutes beforehand.
He pointed out that the member in charge at Bantry at the time, Garda Gary Coakley, had told the court he gave Mr Bailey a glass of water when he asked for one just a minute or so before Garda Coffey used the Drager device to see if he had consumed cannabis.
Mr O’Dwyer accepted that Garda Coffey did not know that Mr Bailey had drank a glass of water within 10 minutes of the test being taken, but said this nonetheless was a clear breach of the operating instructions and, as such, invalidated the test result.
“I say that the oral fluid test was not done lawfully in Mr Bailey’s case and that everything that flowed from that, including the request to get a doctor to take a blood sample to see if he had consumed cannabis, was blatantly compromised and the State’s case against him is fatally flawed,” he said.
Mr O’Dwyer made the submission after Judge Helen Boyle heard evidence from Sgt Kevin Heffernan, who said he was operating a random checkpoint with Garda Carina Finn at Skull, Schull at around 8pm when he saw a car approach and noticed that the driver, Mr Bailey, was not wearing a seatbelt.
He flagged down the car and, in the course of speaking to Mr Bailey, got a smell of alcohol and asked him had he been drinking. Mr Bailey said he had a glass of wine with a meal, so he gave him a roadside breath test, which he failed.
He was arrested on suspicion of drink driving and brought him to Bantry station where Garda Theresa Sheridan tested Mr Bailey with an Evidenzer alcohol tester. He passed the test with a level 50 per cent below the legal driving limit.
When booking Mr Bailey in, Garda Coakley searched him and found a small tin containing a green substance. When Sgt Heffernan asked Mr Bailey if he knew it was, Mr Bailey said “it looked like cannabis”. When asked if it was cannabis, Mr Bailey said he assumed it was.
Mr O’Dwyer also submitted that Mr Bailey’s conviction at Bantry District Court on May 13th, 2021 should also be quashed on the basis that Sgt Heffernan was not operating a Mandatory Intoxicant Testing (MIT) checkpoint but rather a random one and had no reason for stopping his client on the night.
He also argued Sgt Heffernan failed to form an opinion that Mr Bailey was driving under the influence of drugs when he arrested him for drink driving and that Garda Coakley had no legal basis for searching Mr Bailey given he was arrested on suspicion of drink driving.
Unsafe to convict
He said for all these reasons he believed it would be unsafe to convict Mr Bailey and he lodged detailed submissions in writing on each point to assist Judge Boyle in reaching a decision in the case. Mr Bailey is facing a 12 month driving ban if he fails in his appeal.
The Acting State Solicitor for West Cork, Jerry Healy, rejected Mr O’Dwyer’s submissions and said that there was case law to support the admission of the blood test which found Mr Bailey had consumed cannabis, even if it was the case that the preceding oral fluid test was not conducted properly.
He also argued that Sgt Heffernan was perfectly entitled to stop Mr Bailey and form the opinion that he was driving under the influence of an intoxicant, even it was not a MIT checkpoint. He also argued that it was perfectly routine and permissible for Garda Coakley to search Mr Bailey.
He said gardaí went out that night to operate a routine checkpoint and if they did not do such work it would be raised in the Dáil by concerned politicians. “It’s not just that the law requires such checkpoints, it is what society expects,” he said.
Mr Healy said he would require some time to respond in writing to Mr O’Dwyer’s legal submissions. Judge Boyle adjourned the matter to March 6th for mention again at Bantry Circuit Court sitting in Skibbereen.