Yesterday was torturous for the family. We had been under the impression that the medical blood evidence was admissible – since it was being presented in court! And we were told that we’d have a guilty/not guilty verdict yesterday. But in a turn of events, we didn’t get either. The medical blood admissibility is still up for debate and we adjourned for another six weeks yet again.
The first witness to testify was the attending nurse who spoke about the process when a patient comes into the hospital, why blood was drawn, what tests were ordered by her and why, and how the blood was processed once it was drawn.
The second witness was the manager of records management who spoke about the integrity and security of people’s medical records.
Essentially these witnesses were laying the ground work, I would assume, for the admissibility of the blood – so that the Defence couldn’t claim that the blood or the medical records were tampered with.
These two experts were apparently so thrilling that the perpetrator fell ASLEEP. Yes, you read me correct – this drunk driver was sitting there, fighting an impaired driving causing death charge, and he fell asleep during pertinent testimony. I know the family could feel his “remorse” from where they sat (NOT)! It was a disgusting demonstration of total lack of respect and I thought Scott or myself were going to launch ourselves over the three benches that separated us and literally tear that man’s eyeballs out with our bare hands!
The third and last witness to testify, via video conference, was the blood analysis expert. And she was amazing. Now, she did not have the actual blood to work with – she was only given the number of the blood alcohol level from the hospital’s test. Doing a number of conversions, assuming the driver did not have a drink within 30 minutes prior to the accident, and taking into account dissipation of the alcohol from the time of the accident to the time the blood was taken, she concluded that, in her expert opinion, his blood alcohol level at the time of the accident was between 103 and 142 (80 is the legal limit).
She also stated that 103 was a very conservative estimation and that it was highly unlikely that his level could have been any lower. To the contrary, it could have actually been higher than 142. And, based on her expert knowledge, in this range, the driver would have “definitely” been impaired and that the impairment would have played a contributing factor in the accident.
Under cross-examination, the Defence tried to trip her up a number of ways but I felt her point still got across.
Afterwards, we recessed and when we returned, the Crown, Defence and judge had a long discussion about issuing briefs etc and then we were adjourned until Feb 2, 2011. The entire family sat stunned and confused.
The Crown explained to us that five years ago, medical blood evidence such as it was being presented in this case wouldn’t have even been considered. However, in the last few years, more judges are allowing medical blood as evidence in cases that warrant it (circumstances and severity of the case) even though it could be seen as a possible charter of rights and freedoms violation.
What happens now is the Crown will write a brief to support his arguments to let the blood evidence in. He’ll submit that to the Defence Jan 17. The Defence then has five days to write his own brief, arguing why it should be excluded. Both briefs will be submitted to the judge on Jan 28. The judge will have a few days to read and consider both. On Feb 2, he’ll render a decision, which will essentially resolve the court case because if the blood evidence is in, it’s a guilty verdict. If the blood is out, it’s a not guilty verdict.
In our favor, there is case-law supporting it’s admissibility! In the driver’s favor, this judge has never issued a decision on evidence of this nature before and he’s got a slippery lawyer who specializes in getting people off of drunk driving charges (how he sleeps at night is beyond me).
So…it’s hard to say or to anticipate the results. Part of me wants to hope for the best and put that positive energy out into the universe. Part of me feels a sinking sensation and wants to prepare for the worse (but who can ever really prepare for devastating news!?!??!) So…I am going to do my best to focus on the results I want and pray to the Gods every night.
And in the meantime…more waiting…
Here you can read the details of the case up to now: