MADD Canada (Mothers Against Drunk Driving) issued a press release that outlines a MAJOR loop hole in our criminal justice system that impaired drivers are exploiting:
Impaired Drivers Hospitalized After Crashes Escape Serious Charges
Oakville/Ontario/June 29, 2010 – Few impaired drivers who are hospitalized following a crash are charged, let alone convicted, for the thousands of deaths and injuries that they cause each year.
“An impaired driver who causes a crash and ends up in hospital stands a very good chance of avoiding criminal charges because the law makes it so difficult for police and medical personnel to collect admissible BAC evidence,” said MADD Canada’s Chief Executive Officer Andrew Murie. To read the full article, visit:
On August 1, 2009, my mother-in-law, who I affectionally nicknamed Mamma K, was killed in a horrific car accident. She and my (at the time) 16-year-old step-son, Jordan, had gone into the city to pick up some supplies for a family reunion camping weekend, which was being held at Mamma K’s daughter’s house in the country.
It was a clear, brilliant day. Warm. A perfect August day. The road was bear and traffic was light. Driving her beloved 2-door sunfire, Jordan and Mamma K turned onto a familiar stretch of road to head back to the festivities. She was driving less than the speed limit when she and Jordan saw the F350, 1-ton, pick-up truck coming towards them. They couldn’t have known that the driver was drunk, stoned, and about to pass out.
Mamma K had time to say “what’s this guy…”, while she took her foot off the gas and veered slightly to the right hand shoulder of the road before he suddenly veered directly into their lane and slammed head on into her car, literally tearing off the driver side of the car as the truck ripped through the metal, flipped 180 degrees in the air, slammed into the ground on its roof, slid 12 meters, and came to a stop with the Mamma K’s driver side door embedded into its front grill.
Jordan was knocked unconscious when he was hit by the airbags. When he came to, he said his grandmother turned her head towards him, acknowledged him with a sign, and died. She was missing pieces of her head and arm.
A vehicle following Mamma K witnessed the entire accident and was on scene seconds after the wreck. The 20-year-old driver ran to the sunfire, yanked open Jordan’s door, and pulled him from the car. He called 911.
The police arrived on scene and the driver of the truck was assessed by emergency medical personnel. It was determined, given the horrific nature of the accident, that further medical attention was required before he could be cleared medically. The police all detected the smell of alcohol on his breath, the thick-tongued speech, the small precise nature of his steps – they read him his rights but the preservation of his life, and the treatment of his injuries, had to come before the criminal investigation of the incident.
As time ticks by, the alcohol levels simply drift down further and further.
Once medically cleared to give a breath sample and a 45-minute phone call to duty counsel, the police attempt to get a breath sample, nearly three hours after the accident. However, the driver has trouble blowing into the machine and a reading cannot be achieved. The police determine, given the fact that the smell of alcohol has not dissipated in 3 hours, that they have moved beyond suspicion of impaired driving and have reasonable grounds to do a blood draw. They issue the blood draw demand. Another 15 minute phone call with duty counsel is arranged. Blood is drawn. Weeks later, the blood analysis complete – the driver is charged with impaired driving causing death. He pleads “not guilty”.
So in mid-July, we found ourselves in court for two days while these explicit details were revealed to Mamma K’s family over and over again. Jordan was called to testify as to his experience that day – reliving the day, as the driver who traumatized him beyond words, beyond comprehension sat stoically like a statue of non-emotion.
At the end of the two days, we are at a stand-still – waiting for the judge to render a decision concerning the eligibility of the blood analysis as evidence. The defence claims the police did not have reasonable/probable grounds to draw the blood – the Crown is claiming they did. There are many circumstances and issues that require reflection and interpretation of law/precedence from the judge. We were schedule to return to court Aug 5 to hear his decision but with a potentially fatal illness striking the defence lawyer, the trial has been adjourned until October 20th.
What we are going through right now is the loophole that MADD Canada is talking about in their press release.
“Hospitalized suspects seldom charged or convicted for impaired driving deaths and injuries due to shortcomings in law around collection of BAC evidence.”
It’s disgusting considering that this loophole exists for some of the most serious of impaired driving offenses in the sense of the nature of the accident – where there is a victim left seriously injured or dead. Given the seriousness of the accident, the impaired driver is likely injured and therefore has to go to the hospital where the preservation of his/her life and the treatment of his/her injuries come before the criminality of the accident and any investigation thereof. Their life, their injuries etc, comes before the police right to take a breath sample or blood sample.
For example, a drunk driver hits and kills your son, daughter, mother, father etc. And this drunk driver also sustains life threatening injuries. He/she is taking to hospital and is rushed into surgery for 10 hours and then is in recovery for a day or two. The non-refutable evidence of his/her impairment (blood/breath sample) is lost – vanished with the ticking clock. The police, unable to gather evidence, are left trying to put together circumstantial evidence such as friends, family, bartender who can/will testify to the driver’s activities hours prior to the accident to a degree of certainty where a judge and/or jury will have evidence beyond a reasonable doubt that the driver was in fact impaired at the time of the accident.
Good luck getting a conviction with that!
My god, we live in Canada – how can this be?
Given the nature of these accidents, and the role that the impairment has likely played in the accident happening, how is it right that this loophole exists?!?!
Tell me this, how in such a progressive country as this, have we not gotten to the point where instead of simply upholding useless laws and procedures, we evaluate and change what isn’t working – quickly. When such an apparent loophole exists – why isn’t something done quickly and efficiently to elicit change?
Let me tell you, ALL of Mamma K’s “rights” were suspended when she was murdered by this “alleged” drunk driver. She was taken to the hospital, a blood sample taken, a full toxicology report done on that blood, and an autopsy performed. In court, her blood alcohol level was admissible (proving she had not consumed one drop of liquor that day). Why is the other driver not required to submit to the same reasonable level of scrutiny? When a fatality occurs and a blood sample/analysis is drawn from the victim, why aren’t any and all other drivers required to submit to the same process and provide a blood sample as quickly as humanly possible?
I don’t get why we aren’t there yet?
How can it be that a drunk driver can get smashed, get behind the wheel of a “tank” of a truck, smash into an innocent woman and her young grandson, kill her brutally, literally severing parts of her body, and get away with it with no consequences because of procedure?
It’s simply not right but it’s happening all over Canada right now.
And don’t even get me started on sentencing even if he IS indeed found guilty – that’s an entire other post! And I’ll wait until we get that far in the process to comment.
But what can we do about this loophole right now? What I’ve been told is to write our local MLAs, MPs etc and demand change. Write often, refuse to be ignore!
As I know more, I will pass it along.