Pubdate: Thu, 20 May 2004
Source: Aldergrove Star (CN BC)
Copyright: 2004 Central Fraser Valley Star Publishing Ltd.
Contact:  http://www.aldergrovestar.com/
Details: http://www.mapinc.org/media/989
Author: Al Irwin

BLOOD SAMPLE'S THC EVIDENCE DISPUTED IN FATAL CRASH CASE

Blood sample evidence in a crash which killed two teens was called
into question during the defence's final submission Monday.

In B.C. Provincial Court in Surrey, defence counsel Allan Hoem asked
the court to acquit on both the impaired driving and dangerous driving
charges.

He is acting on behalf of the accused, a 19-year-old Langley man who
was 16 when his 2000 Mustang went off the road in the 6300-block of
264 Street, after passing another northbound car on a hill, at around
10 p.m. April 4, 2002.

The single-car crash claimed the lives of two of his passengers,
Langley youths Dayton Unger and Simon Featherston, both 16.

The case involves an unusual charge of impairment by marijuana use.
Hoem argued the Crown has not proven continuity in handling the blood
samples.

Testimony indicates a Langley Memorial Hospital technician took four
samples of blood from the accused on the night of the accident, all
for medical purposes. Three vials had pink stoppers, one a yellow stopper.

"In the pink stopper, the tubes have a preserver, in the yellow
stopper there are no preservatives," Hoem told Judge Bill McDonald.

While the yellow-topped vial had apparently been "spun down" in a
plasma test, the provincial lab received - accompanied by an order of
seizure - a pink-topped tube of blood that contained no preservative,
Hoem said.

"The continuity. . . (of the sample) has not been established," argued
Hoem.

Neither police officers nor ambulance attendants at the scene, nor
those who dealt with the young driver at the hospital, noticed signs
of impairment in the accused. And the police did not have reasonable
grounds to seek a blood sample, Hoem told the court.

B.C. Coroner Marg Paonessa requested the blood for her separate
investigation. She turned the test results over to Langley RCMP when
she learned the analysis indicated impairment.

An expert called by the defence had testified that the level of
marijuana in the blood tested indicated that the drug must have been
taken between three and 53 minutes before the sample of blood being
drawn.

But the sample was taken at 11:52 p.m., almost two hours after the
accident.

Another expert had testified that shock may have slowed the
dissipation of THC from the blood. But Hoem said none of those who
dealt with the accused found evidence of shock.

"I would suggest that under these circumstances, the charges of
impaired driving causing death ... must be dismissed," Hoem said.
After a lunch break, Hoem dealt with the charges of dangerous driving
causing death.

He told the court that another juvenile, the front seat passenger who
survived the crash, told the court that a black Camaro had passed the
accused's Mustang shortly before the crash. The surviving passenger
testified that the Camaro slowed down, then sped up, and slowed again,
keeping the Mustang driver from passing.

"(The accused) got tired of this and pulled out to pass," Hoem quoted
the witness. "There was a car coming toward us and that's all I
remember, I woke up in the hospital."

The driver of the approaching vehicle had testified that the Mustang
steered abruptly back into the proper lane in front of the Camaro,
before losing control.

The driver of the Camaro, Timothy Smith, had told the court he was
being tailgated by the Mustang, which then swerved out to pass. "The
evidence of Mr. Smith is contradicted by three witnesses," said Hoem.

"Mr Smith is a person who has a vested interest in this ... (avoiding)
civil action," said Hoem.

Hoem said the court had heard a varied range of possible speeds the
Mustang was travelling at the time of the accident, as low as 76 kmh.

He cited a number of precedent cases, which indicate a wide
interpretation of negligence, from a momentary lapse of attention, to
"a marked departure from the standard of care a prudent driver in a
similar situation (would recognize as dangerous)."

Hoem argued that "there is evidence" the accused was "forced" by the
actions of the Camaro driver to pass on a dangerous stretch of road.

"Nobody forced him to pass," said the judge.

Hoem argued that the accused got out into the other lane, then had to
speed up to avoid the oncoming car.

"It is a fair observation that if Smith was driving at 80 or 90 kmh,
(the accused) would have to be faster to avoid (a collision with the
oncoming car)," said Hoem.

The Mustang got ahead of the Camaro and pulled into its proper lane,
Hoem said.

"If there is an oversteering at that point, that simply is an error in
judgment," the defence counsel argued.

"If you accept the evidence of (the surviving passenger) and (another
witness, over Smith), the accused must be acquitted," Hoem told the
judge.

Prosecutor Winston Sayson will make the final arguments for the Crown
on June 1. Sayson said he expects to take at least half a day,
possibly the whole day.
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MAP posted-by: Larry Seguin