Lack of evidence leads to botched drunk driving case

Jamie McBride is paying a $1,000 fine and spending a month under house arrest for killing someone with his car two years ago.

Jamie McBride is paying a $1,000 fine and spending a month under house arrest for killing someone with his car two years ago.

He was driving on the wrong side of the Alaska Highway, it was early in the morning and he had previously been at the bar when the accident happened in July 2008.

His erratic late-night cruising had all the signs of a classic drunk driving case.

But the two criminal charges against McBride – driving while impaired and driving dangerously causing death – were dropped on Monday because there wasn’t enough evidence, according to news sources.

He was only found guilty of driving without due care and attention, a breach of the territorial Motor Vehicles Act.

At several points over the course of the morning, opportunities to gather evidence on whether he was drunk were lost.

That’s because getting evidence from possible drunk drivers is a legal mine field.

“There’s a slippery slope of going from a law-abiding society to a police state,” said Sgt. Don Rogers, the RCMP’s Yukon spokesperson.

If there’s an accident and there’s no apparent cause for it, the driver says he’s not drinking, there’s no smell of alcohol, but an officer makes him blow the breathalyzer anyway, it would violate an individual’s rights, said Rogers.

“If the police started doing that, the media would be the first people, right before the civil libertarians and the lawyers, to jump down our throats saying we overstepped our legal obligations, which we would have,” he said.

When officers arrived at the McBride crash site just before 4 a.m., a crowd had already gathered.

McBride, who was driving a Chevy Cobalt, had smashed into a van driven by Diane Roby.

An officer at the scene, who spoke to McBride after the roof of his mangled car was ripped off by rescue personnel, didn’t notice any drunken mannerisms, according to testimony in McBride’s preliminary trial.

McBride also told a witness he had spent the evening drinking nonalcoholic beer and had fallen asleep at the wheel from working too hard.

So no one took a breathalyzer test.

The law says that even if the scene looks like the sick work of a boozed-up driver, the RCMP can’t whip out a breathalyzer based on the crash itself.

The police need what’s described legally as “reasonable and probable grounds” to actually use a breathalyzer, which proves someone is over the limit.

“If we go to an accident scene and there’s no reasonable and probable grounds to believe that the person is impaired, we can’t, by law, make a breathalyzer demand,” said Rogers.

“The Canadian Charter of Rights and Freedoms specifically prohibits anyone from being made subject to unreasonable search and seizure.

“If you are making a demand based on intuition rather than evidence, you are unreasonably detaining that person.

“And anything stemming from that would be fruit from the forbidden tree and would be tossed.”

In other words, the police need evidence to gather evidence.

If there’s some evidence, but not enough to qualify as “reasonable and probable grounds,” the police can conduct a roadside screening device test.

The device is a like dumbed-down breathalyzer.

It’s calibrated to say pass or fail for certain amounts and it’s applied to the driver.

“While a breathalyzer will determine the actual amount of booze in someone’s system,” said Rogers.

There’s a degree of subjectivity in a police officer’s calculation that someone might be impaired, or that reasonable and probable grounds for suspicion have arisen.

Every officer has seen a different number of drunk drivers and will evaluate the situation accordingly, said Rogers.

Pulling out a breathalyzer instead of the roadside screening device requires more obvious evidence.

An open bottle of liquor and a strong stench of alcohol combined with clear drunken behaviour is an example.

But drunken mannerisms are not a slam dunk.

Slurred speech, wobbly eyes and a loss of balance don’t mean someone is impaired, he said.

“There may be people that are impaired that exhibit no symptoms,” he said.

“And if you have nothing else, you cannot ethically or morally make the call.”

The smell of booze doesn’t mean someone is impaired either.

“Alcohol use in and of itself is not necessarily proof of impairment,” said Rogers. “You can have two drinks and not be impaired.”

Even displaying several symptoms doesn’t mean someone is intoxicated.

Someone might have a reaction to alcohol that mimics severe impairment, or they might be reacting to something else, said Rogers.

A law that would allow police to automatically gather breath samples from any drivers involved in a crash is not possible, he said.

The detention principle could not be restricted to just car crashes – it would easily be applied to other evidence-gathering situations.

“It would be able to be carried over into any judicially authorized application,” said Rogers.

Even if police had used a breathalyzer, the machines don’t always work.

Yukon RCMP use a device called a Datamaster C, and though Roger says they are routinely maintained, they can sometimes slip up.

“They’re as precise as they can be,” he said.

“Do they fail occasionally? Yes. Are they subject to operator error? Yes. They’re only as good as the technician.”

Police are not only prevented from gathering evidence carte blanche from the crash site, but from hospitals too.

At Whitehorse General Hospital, a nurse took blood samples from McBride for medical samples.

But as all medical samples go, McBride’s blood was mixed with other fluids and spun until it was separated into plasma and serum.

By the time police obtained the blood eight days later with a warrant, the samples were less than stellar.

In McBride’s preliminary trial, an officer is quoted as saying the amount of booze in the separated samples was enough to determine McBride was over the legal limit.

It’s not clear whether the separated blood samples were admissible during trial.

But a study released this week by a British Columbia emergency room doctor reveals McBride’s situation is common.

Drunk drivers use emergency rooms as safe havens because once they’re in the care of doctors and nurses, their patient’s rights kick in and police can’t gather evidence, Roy Pursell, an emergency room doctor at the Vancouver General Hospital, told the Vancouver Sun.

Only seven to 11 per cent of drunk drivers who end up in hospital get convicted, Pursell found.

And around 30 per cent of drunk drivers who end up in hospital repeat the offence again, he found.

“These studies suggest that our emergency departments may have become safe havens for the worst drinking drivers, those drivers who are involved in fatal or personal injury crashes,” he told the Sun.

“They recover, get out of hospital, drive drunk again, and escape prosecution and conviction.”

Pursell recommends the criminal code be adapted so that blood samples for future police warrants be collected, much like what is already done in England, New Zealand and Australia, he told the Sun.

But then again, the proposal, much like the breathalyzer situation, would be an exception to a golden rule of law.

Roby, the woman who died in the McBride accident, was flown to Vancouver General Hospital after the crash, where she died the next day.

Contact James Munson at

jamesm@yukon-news.com

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