The consequences of drink-driving were so serious they should outweigh any question of whether a garda was entitled to open the car door of a motorist suspected of drink-driving without their permission, a State solicitor argued yesterday.
State solicitor for Cork city Barry Galvin told Cork District Court that any breach of the law in obtaining evidence had to be weighed against the seriousness of drink-driving which can have "savage consequences" for other road-users.
Mr Galvin was arguing in the case of Sheila O'Sullivan, of Palmbury Orchard, Togher, in Cork, who was arrested on suspicion of drink-driving by Garda Frances Murphy on January 8th, 2005, after Garda Murphy opened the door to Ms O'Sullivan's car without permission.
Mr Galvin said Garda Murphy was on patrol and, as a result of a call, went to Togher Road where she saw a car exiting from a shopping centre. The car mounted a roundabout and swerved from side to side along the road before entering into Palmbury Orchard.
The car pulled into the driveway of a house without any indication and almost hit the side of the house. The driver was rude, unco-operative and refused to give a breath sample, said Mr Galvin, adding it was "a bad case" which the garda had "a duty to detect and punish".
Was Garda Murphy's opening of the door a serious invasion of Ms O'Sullivan's rights or was it a technical and trivial breach? he asked.
If it was the latter, then it had to be balanced against the seriousness of drink-driving and the evidence obtained could be allowed, he argued.
Ms O'Sullivan's solicitor, Joe Cuddigan, said Mr Galvin's arguments might be characterised as the "Guantánamo Bay argument" which was argued upon in the US Supreme Court and which effectively argued that the end justifies the means.
Mr Cuddigan said Garda Murphy had admitted she had no statutory or common law authority for opening the car door, a deliberate act on her part and, as such, the evidence was obtained illegally and was inadmissible.
"You have to put certain restraints on gardaí because if there were no restraints, they would go directly to the end result with no regard for the means - because the rewards are there in terms of securing a conviction," said Mr Cuddigan.
Judge Con O'Leary agreed to a request from Mr Cuddigan to allow him to see if he could draft a submission which would go beyond existing case law with a view to seeking a consultative case stated which would clarify precisely the Garda's entitlements.
Judge O'Leary expressed some doubt that any higher court would be able to go beyond the existing case law on the matter, but he agreed to adjourn the case until October 31st to allow Mr Cuddigan search for further case law and prepare his submission.
