Driver who refused to provide a breath sample tells court she 'tried her best'

A Clonoulty woman who said she could not give a breath sample has told Thurles District Court, that she didn’t think her health condition was “relevant” when asked by gardaí. 

Nora Maher (63) of Churchquarter, Clonoulty was convicted of refusing to give a breath sample at Thurles Garda Station on January 7, 2024. 

Garda Rachel Brogan told the court that on the day of the incident, she responded to a report of a car parked in the middle of the road in Loughtagalla, “causing an obstruction”.

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The car was pointing toward Moyne and the engine was running. Garda Brogan opened the driver’s door and saw the defendant bent over the steering wheel, appearing to be asleep and the key in the ignition.

The guard told the court she was concerned about the car’s location because it was a foggy evening and the road had a bad bends. “You would swear it was meant to keep going. It was like it just stopped or broke down,” said Garda Brogan. 

When Garda Brogan spoke to the defendant, Ms Maher told her to “leave her alone.”

Garda Brogan told the court that the defendant's eyes were glazed, there was a smell of alcohol and her speech was slurred. When asked for her licence, the defendant initially refused but did eventually comply. 

Garda Brogan formed the opinion that the defendant was intoxicated to the extent she could not control the vehicle and arrested her, taking her to Thurles Garda Station. 

At the station, during the evidence procedure,  Garda Brogan told the court that while the defendant had given a first sample, she made little attempt on the second, third and fourth attempts before the machine timed out. 

“I felt she was being awkward. She was trying to slow the process down as much as she could,” said Garda Brogan. 

Acting for the defendant, solicitor JJ Fitzgerald said his client had not refused but was simply unable to provide a second sample. 

He said that she had told gardaí she was “doing her best.” Garda Brogan disagreed, saying the defendant had been “very difficult” and “stubborn” from the start. 

She couldn’t be bothered is how I perceived it. When I met her on the road, she was making very smart comments. She was adamant she was going where she wanted to go,” said Garda Brogan. 

Garda Mark Rabbitte of Templemore Garda Station was the guard on duty trained to operate the Evidenzer machine.  He told the court that he explained to the defendant how to give a sample and the penalty should she refuse.

He said he has seen people struggle but did not feel this was the case for Ms Maher. 

“She gave what I would call three feeble attempts,” said Garda Rabbitte. 

Garda Rabbitte explained that there are two counters on the machine and that he would point to them while encouraging the person to continue to blow into the mouthpiece. 

He said throughout the test, the person can see how far they have to go. But, in the case of Ms Maher, the guard told the court, she wasn’t trying.  

“We were nowhere near getting a sample, not even 50%,” said Garda Rabbitte.

Mr Fitzgerald asked Garda Rabbbitte if the defendant had told him that she had an issue with her lung capacity. “She said she couldn’t do any better,” said Mr Fitzgerald. 

Garda Rabbitte said she had not. 

“If you can do it once and then all of sudden can't a minute later, it’s not a matter of can’t,” said Garda Rabbitte. 

Garda Matthew Kennedy was the member in charge at Thurles Garda Station on the night of the incident. Garda Kennedy told the court there was a strong smell of alcohol but she answered no to the health condition and mental health questions. 

When the defendant was returned to the custody area following her failed attempts at giving a breath sample, Garda Kennedy contacted a doctor to carry out a blood or urine test. 

Following testing by the doctor, the defendant was charged. 

Mr Fitzgerald asked the guard why, if they were satisfied that the defendant was drunk, why was she only charged with refusing to give a breath sample and detained for two hours. 

Garda Kennedy replied: “I have no control over how long it takes to get a doctor.”

NOT Relevant

Maher told the court that she had tried her best to give a sample but her poor lung capacity and health issues prevented her from doing so. 

She also denied being uncooperative with the gardaí. 

“I don’t agree with that. It's not in my personality to be like that,” said Ms Maher. 

Acting for the prosecution, Inspector James White asked the defendant why she had not notified either the gardai or the doctor of her health condition. 

He put it to her that this is the first time she is raising the issue. Ms Maher replied that she told the guard that her breath “does not go that far” and asked the Inspector why she would tell the doctor. 

“Because he is a doctor there because you failed to give a sample,” said Inspector White.

Ms Maher said that five years ago she couldn’t get out of bed and now she requires infusions. But she did not think she needed to inform the gardaí.

“To me, they were not relevant to what was going on,” said Ms Maher.

In closing Mr Fitzgerald said there must have been some doubt about the results as Ms Maher was not charged with drunk driving.

Inspector White told the court that a summons had not been issued on foot of the blood sample, due to “human error.”

However, failing to give a breath sample was a standalone offence.

Judge Fiona Brennan said she was satisfied that the defendant had been treated fairly and that she had not made enough of an attempt to give a sample.

“This court has no doubt this was a refusal,”  said Judge Brennan.

Mr Fitzgerald told the court that his client informed him that her income is €42 a month, to which the judge said the defendant would have to elaborate. 

Ms Maher said she receives that from a health board pension. 

Judge Brennan fined the defendant €150 with 12 months to pay and disqualified her from driving for four years.