A defence solicitor, representing a young man charged with driving with excess alcohol in his breath, argued that a change in the law some weeks before he was caught denied him the right to avail of other options that may have seen him come under the legal drink driving limit.

Change in legislation

During a contest on Monday at Enniskillen Magistrates Court, Oliver Roche argued that the change in legislation, which removed the statutory options of giving blood or urine samples, was made due to improvements in intoxilyzer machines that police conducted their tests on.

Mr. Roche, representing Charles McDonagh (20) of Coolcullen Meadow, Enniskillen said in his submissions that the evidence from the police officer who carried out the test, that as far as they were aware, the machine used was no different than the one used before the legislation changed.

He said the reason the legislation was approved by the assembly in the first place was due to the “improvement to that particular machine” since it was approved in 2001.

Additional safeguards meant that a person who blew between 40-50mg of alcohol in 100ml of breath would not be able to avail of the statutory options of having the choice of giving a blood or urine sample.

Mr. Roche argued that people have availed of these options and come back under the limit.

McDonagh gave a reading of 43mg of alcohol and was deprived of this opportunity due to legislation changed on the false premise of significant improvement to machinery used.

Statutory options

Mr. Roche said the evidence showed there have not been any improvements to the machinery and the evidence of the police constable should be excluded due to the “manifest unfairness” and if the defendant had been stopped a matter of weeks prior he would have been given the statutory options.

Constable Ryan Armstrong was the only person to give evidence at the contest.

He told how he and a colleague were walking on the forecourt of the 24-hour shop on Queen Street, Enniskillen in the early hours of December 19, when a car pulled up and was “essentially abandoned”.

McDonagh got out of the car and appeared unsteady on his feet and they suspected him of drink driving. He failed a preliminary breath test and was taken to Omagh where he gave the evidential reading of 43mg.

During cross-examination, Mr. Roche asked Constable Armstrong if he was aware of the legislation change which he confirmed he was. He was also asked various questions about the intoxilyzer machine used.

In their submissions, the prosecution said the machine was calibrated correctly and the reading was correct.

Proper procedure

District Judge Steven Keown said the defence case is that the change in law was unfair with the removal of the statutory options but this was not evidence the intoxilyzer was not working properly.

He said the defendant was subject to proper and lawful procedure and convicted him of the charge.

McDonagh was banned from driving for 12 months and fined £300.

Mr. Roche said they had been taking advice from Counsel about an appeal and asked the court to grant bail pending an appeal as they sought further advice on the matter.