A CO WATERFORD man has had drink driving charges dismissed due to a judgement that a Kildare garda unlawfully handcuffed him.
24-year-old Ross McLoughlin of Cappoquin, Co Waterford, was charged with drink driving at Silken Vale, Maynooth, on 25 July 2014.
Evidence was given at Kilcock District Court that Garda Ger Guinan stopped McLoughlin under suspicion of drink driving at about 1.50am on that date.
Garda Guinan outlined how McLoughlin’s eyes were “bloodshot” and there was a “strong smell” of alcohol from his breath.
McLoughlin was caught driving with a reading of 109 milligrams of alcohol per 100 millilitres of blood.
Defence solicitor, David Powderly, put it to Garda Guinan that he had handcuffed McLoughlin, despite him being cooperative.
Inspector John Costello asked Garda Guinan if McLoughlin was violent, to which Garda Guinan said he was not.
Powderly argued that the use of the handcuffs was “unlawful”.
He said: “He was in handcuffs before he was at the Garda Station.”
In court Powderly argued that under a previous Supreme Court ruling, Cullen v DPP 2014, the use of the handcuffs was unlawful.
In February 2014, Mr Justice Niall Fennelly made the Supreme Court judgement in DPP v Cullen in which a driving prosecution was dismissed because the driver was handcuffed without reasonable cause which was deemed to be an infringement of his rights.
Judge Desmond Zaidan asked Garda Guinan if he was happy to state that McLoughlin was handcuffed to which Garda Guinan said he was.
The Judge then asked Guinan if McLoughlin had cooperated. Garda Guinan said that he did cooperate.
Garda Guinan said: “If you wait until something happens, it could be too late.”
When Zaidan asked the garda if he had any reason to be in fear of McLoughlin, Guinan replied: “You always have some level of fear. Most people don’t like being arrested and they have to be handcuffed.”
Judge Zaidan ruled that because there was no resistance from the accused putting him in handcuffs was unlawful, and because the case was so similar to Cullen v DPP in the Supreme Court the charge of drink driving would have to be dismissed.
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