Monday 11 December 2017

Ban stands but €2,000 fine is cut to just €150


A MAN WHO refused to co-operate with Gardai two weeks after his son was arrested for dissident Republican activity has failed in an appeal against a conviction for refusing to give a breath sample when arrested on suspicion on drink driving.

The appeal was heard at Wexford Circuit Court last week, where Nicholas Kendall Senior, of Keelogues, Barntown, brought an appeal against a four-year driving ban and €2,000 fine that had been handed down in the District Court.

The court was told how the offence occurred on the night of October 30/31 in 2010.

Garda Linda O'Leary and Garda David Kelleher were on patrol when they saw a car cross over the white line on the short stretch of road between the roundabout at Mother Hubbard's and the Larkin's Cross junction with the N25.

The car crossed the road, and took the next left, and they stopped it on suspicion of drink driving after Garda O'Leary saw it cross the white line again. The driver gave his name as Nicholas Kendall, but after speaking to his wife (who was in the passenger seat), he refused a number of requests to give a breath sample.

He asked for a solicitor, and his wife was heard to say ' this is a conspiracy'. He was arrested and brought to Wexford Garda Station, where he again requested a solicitor.

Attempts were made to have one come to the station, but these attempts proved unsuccessful because of the lateness of the hour. Kendall again refused to provide a breath sample there, despite being warned that not doing so was in itself an offence.

His barrister, Conor O'Doherty, sought a removal of the District Court order on a number of grounds, including that the place where Kendall was stopped - at a communal entrance way to his house and a number of other properties - was not a public place, but his applications did not succede.

Kendall then gave direct evidence, saying he remembered the night well because it as the first time he and his wife had been out socially in the nearby Mary Joe's pub after his son was arrested in County Louth two weeks earlier. His own house had been searched as part of the follow-up investigation, and he himself had been questioned at New Ross Garda Station for 48 hours.

He said he had just one drink on the night, as did his wife, and so he denied that his driving could have given rise to any suspicion on the part of the Gardai.

He was asking for a solicitor because his son's legal team had told him outside a bail hearing in the Central Criminal Court that his life would be very different in future, and that if Gardai moved to take any futher action against him, he should give only his name and address before asking for a solicitor to be called.

Judge Barry Hickson asked him did he not accept he should have given a sample when requested, particularly if he had only one pint, as any punishment for that - if any - would be less than the four-year ban for not giving a sample at all.

Kendall replied he thought he had a right to see a solicitor. ' They seem to be available all the time for other people and other things,' he said.

The judge affirmed the District Court's disqualification order of four years, but reduced the fine from €2,000 to just €150.

'I'm sure the advice he was given was wellintentioned, but it was bad advice,' he said. 'If he only had one pint, he should have given the sample to Gardai, and then he would not be in the mess he is in now. He is the author of his own misfortune.'

Implementation of the driving ban was postponed for one month as Kendall works in the motor business and the court was told he will need time to get his affairs in order.

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