Driver whose BMW was ‘weaving' from lane to lane on M1 loses drink driving appeal
The circuit court rejected defence submissions that no offence had been committed to allow gardaí stop the appellant in the first place and that he was questioned without the benefit of a caution.
Gda Jason McDonagh testified that on July 14, 2023, at 12.40am he was observer in a garda car when a BMW X4 sped past on the M1 southbound at Junction 8.
This car was weaving from Lane 1 to Lane 2 and back again without indicating. It was travelling at 'very high speed'.
Gardaí only caught up with it when it stopped at the toll plaza at Balgeen, Julianstown at 12.42am. They cut if off from moving any further.
Gda McDonagh said he got out and went to the driver's side window of the BMW. Mr Magee put the window down. He was polite and provided documentation.
There was a smell of drink. The appellant said that he was on the way to Dublin Airport for a flight to Dubai on July 16.
Asked if he had been drinking, the man replied that he had two cans 5 hours earlier.
Mr Magee failed a roadside breath test and Gda McDonagh said that after forming his opinion he arrested him at 1.06am. Handcuffs were used because of his 'size and stature' and because of information received from Garda Command and Control.
A subsequent analysis gave an over the limit reading of 191mg of alcohol per 100ml of urine.
The court heard that the appellant was co-operative throughout the process. He attended the garda station for charge on August 7, 2023.
Cross-examined by barrister Ronan O'Carroll, instructed by solicitor Fergal Boyle, Gda McDonagh said he had been informed that the driver had failed to stop for the PSNI in Newry and that information had also been received from Mr Magee's family about a medical issue.
The witness said he did not administer a caution prior to asking about drinking, nor was the response noted.
'I was trying to ascertain facts. It slipped my mind to caution him.'
Gda McDonagh continued that it made no sense that he was travelling for a flight in two days' time.
There were a number of reasons why the officer said he was under the impression an offence had been committed, such as the driving, his 'story' about the flight and the smell of drink.
It was a high-powered vehicle travelling at excessive speed.
Mr O'Carroll applied for a dismissal on two grounds, the lack of a caution and no offence being committed initially. It was submitted that there was no such offence under the Road Traffic Act of failing to indicate while crossing lanes.
State Solicitor for Co. Louth Fergus Mullen said that the driving was at least in the dangerous category and that the garda had said the admission of drinking had formed no part in forming his opinion.
It was derived from Mr Magee's driving, the smell of drink and failing a roadside breath test.
Judge Hayes said that a caution might have been a wiser course to follow.
Once a garda has stopped a motorist, a smell of alcohol would lead to a Drager test.
It was clear the answer (to the question) did not form part of the garda's opinion. There were clear grounds to form an opinion without reliance on the appellant's answer.
The judge continued that the evidence was clear what caused the officer to stop the car. It was travelling at high speed and weaving from lane to lane and back without indication.
The speed was 'highly excessive', giving rise to ample grounds for the stop.
The court heard that Mr Magee has no previous convictions.
He works in the motor trade, employing 11 people.
The district court order was affirmed.
A one-week stay was granted on the start of the disqualification.
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