Digest: R v Burnett, 2018 SKPC 46

DateAugust 18, 2019

Reported as: 2018 SKPC 46

Docket Number: 24518694 , PC17137

Court: Provincial Court

Date: 2019-08-18

Judges:

  • Green

Subjects:

  • Criminal Law � Motor Vehicle Offences � Driving with Blood Alcohol Exceeding .08

Digest: The accused was charged with driving while over the legal limit, contrary to s. 253(1)(b) of the Criminal Code, and while his ability to do so was impaired by alcohol, contrary to s. 253(1)(a) of the Code. He was charged and pled guilty to driving an unregistered motorcycle contrary to The Traffic Safety Act. The accused testified that he was driving home on his motorcycle and ran out of gas. He called a friend who lived on a farm nearby for help and the friend arrived with a jerry can of gas. The friend testified that the accused did not appear to have been drinking. The accused proceeded to a gas station to fill up and called his wife to tell her that he was on his way home. She testified that he did not sound inebriated at that time. En route, he swerved to miss hitting a moose and went into the ditch and injured himself. He drank two beer from the dozen he was carrying in his knapsack. After a motorist stopped, the accused asked him to drive him home. The motorist testified that the accused appeared to have been drinking. Once at home, the accused asked his wife to give him two more beers. As his wife could not drive him to the hospital, she arranged to have another friend of the accused drive him. The friend testified that the accused drank three more beers in the car while they drove to the hospital. The police officer who responded to the report of an accident arrived at the hospital two hours after the accident. Believing that the accused had been operating a vehicle while impaired he demanded a blood sample. It contained a blood alcohol concentration of 211 mg percent. The defence raised the post-driving consumption defence to the charges under s. 258(1)(d.1) of the Code. The accused argued that his BAC was due to the alcohol he consumed after the accident, which was absorbed into his blood by the time the sample was taken, and therefore his BAC was not above 80 at the time he operated his motorcycle. The accused�s weight of 125 pounds and empty stomach were factors. The Crown�s expert witness regarding toxicology testified that after calculating backward from the sample taken at the hospital to the time of...

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