A KILFINANE man who claimed in Kilmallock Court that traces of cannabis detected in a sample of his urine were as a result of rubbing a medicinal cream into his skin , was disqualified from driving for four years.
Patrick MacKessy, 21, of Bosnetstown, Kilfinane, claimed that the topical cream contained cannabis and that he had used it to relieve a dry skin condition which he suffered as a result of treatment for cancer.
Garda Claire Haugh, Bruff Garda station, told the court that last April 5 she was on patrol with Garda Keith Harmon at Thomastown, Kilfinane. Garda Harmon, who was driving the patrol car, activated the blue lights and the driver of a car in front of them could be seen making an action as if to throw something out the window.
Garda Haugh said that she did not get a smell of alcohol when she spoke to Mr MacKessy, but did notice that his eyes were bloodshot and watery and there was a strong smell, which she suspected to be cannabis, coming from the car.
Mr MacKessy, who was charged with drink driving at Thomastown Wood, Thomastown, Kilfinane, last April 5, was arrested and taken to Bruff Garda station where he provided a sample of urine. The sample, Garda Haugh said, was sent to the Medical Bureau on April 6 and the results showed that there was a nil concentration of alcohol.
At a later date, Garda Haugh explained, a certificate was received to say that there was cannabis in the specimen.
Under cross-examination from defence solicitor Cathal Lombard, Garda Haugh admitted that she had not found anything in the wooded area as a result of the throwing action she had observed.
“It was dark. It was a wooded area and there was a lot of scrub around,” she said.
It was the defence’s case that Mr MacKessy’s vehicle was stationary initially as the breaks had gone, resulting in it being unsafe to drive. Mr MacKessy said that he had been parked on the road, but when he saw a car approach started up the engine and began to drive off the road to let the other vehicle pass.
Garda Haugh said that the car was moving when the they first observed it.
Garda Keith Harmon said that when he switched on the blue lights, he saw the driver make an action as if throwing something through the window.
The court heard that there were no substances found on either Mr MacKessy or in the car.
Mr MacKassy told the court that he had never smoked cannabis. The passenger in the car that night also denied that they had smoked cannabis.
The court heard that in 2005, Mr MacKessy was diagnosed with Hodgkin’s Lymphoma and underwent chemotherapy and radiotherapy.
As a result, Mr MacKessy suffered with dry skin and used a hand cream to help him cope with it. One of the cream’s ingredients, it was claimed by Mr MacKessy, was cannabis.
Mr MacKessy produced the cream in court.
“That’s for external use only. You are not exactly inhaling it or ingesting it,” said Judge Mary O’Halloran.
Mr MacKessy replied that “it probably still gets into your system”.
Judge O’Halloran said that “anything could probably”.
When asked by Mr Lombard how often he used the cream, Mr MacKessy said that he would often use it and had empty tubes of it at home. He said he would rub it on his chest, leading to the cannabis showing up in his urine.
“How can you say that it got into your urine. You have no scientific proof of that whatsoever,” said Judge O’Halloran. “These are layman’s theories”.
Mr MacKessy’s father, Michael, told the court that, “as a father to a son I had him warned not to touch anything or to smoke”.
Mr Lombard said that there was no evidence given that Mr MacKessy was incapable of having proper control of a mechanically propelled vehicle in a public place.
“The Gardai are relying thoroughly on the fact that cannabis was detected in the sample,” he said.
In relation to the analysis of the sample provided, Mr Lombard pointed out that the incident occurred last April 5, but that the certificate indicated that the sample wasn’t analysed by the bureau until June 2.
He said that there was an onus on the bureau to analyse the sample as soon as practicable, which, he claimed, “they did not do in this case”.
Judge Mary O’Halloran was satisfied with Garda Haugh’s evidence that she had formed the view that Mr MacKessy was under the influence of an intoxicant to such an extent as to render him incapable of being in control of a vehicle in a public place.
In relation to the analysis of the sample, Justice O’Halloran said there was nothing on the certificate that would render it invalid. She said that a prima facie case was made by the State and she made a formal order to convict.
The court heard that Mr MacKessy, who has no previous convictions, is undertaking a carpentry course with FAS.
Judge O’Halloran disqualified Mr MacKessy from driving for four years and imposed a fine of €125.
Recognizance were fixed in the event of an appeal.