KAMLOOPS, B.C. - The alleged driver in a crash that killed two people registered a blood-alcohol reading 50 per cent higher than the legal limit about an hour after the incident but a judge has ruled against the evidence.
The results obtained through a blood sample taken at a hospital can't be used by the Crown because police failed to read the man on trial his legal rights beforehand, B.C. Supreme Court Justice Deborah Kloegman said.
She said those rights included the right for Wayne Fedan, 53, to speak to a lawyer without cost or delay.
However, she allowed as evidence a statement Fedan gave to a paramedic, in which he admitted to driving that night and drinking three rye and cokes beginning five hours earlier.
Fedan is charged with two counts each of impaired driving causing death and dangerous driving causing death.
The single-vehicle wreck killed 20-year-old Brittany Plotnikoff and 38-year-old Kenneth Craigdaillie in the early hours of March 20, 2010.
While the Crown had said it would not use a blood-alcohol reading taken by police following the crash, a prosecutor intended to enter as evidence the reading taken in hospital.
Last year, Kloegman found RCMP breached Fedan’s rights under a section of the charter because he was not read those rights when the first blood-alcohol reading was done.
That meant Fedan’s admission to police that he was the driver and had been drinking are not admissible.
Kloegman said Tuesday that the police demand for a blood sample at the hospital was also not accompanied by a charter warning.
Court has heard that a junior RCMP constable with little experience was placed in charge of the investigation and the scene with two people dead.
Const. Donna Gillingham has testified that she was a rookie officer who'd been on the job for a year and a half and may not have noted the smell of alcohol on Fedan's breath.
Court heard Gillingham found an almost-empty bottle of whisky next to the pickup. The Crown alleges the bottle was inside the vehicle prior to the crash.
Dr. Todd Ring testified Tuesday that Fedan was brought to Royal Inland Hospital in serious condition.
Ring said he was concerned about possible brain injury and spinal fracture.
Under those circumstances, Ring said, he would not allow police or a lawyer to speak with Fedan due to possible medical complications.
The trauma team was focused on completing blood work and a CT scan to determine if Fedan had brain or other internal bleeding, he said.
“If someone’s on the phone (talking to a lawyer), those steps can’t happen. It takes away from his medical care,” Ring said.
Kloegman ruled medical staff at the hospital had Fedan’s medical needs, not his legal rights, in mind.
A CT scan found Fedan had neck fractures and there was a danger he could break his spinal cord. Four days after the accident, he had neck surgery.
Defence lawyer Anthony Varesi argued police had no right to take the second blood sample, based on the earlier breach of his rights.
Varesi also noted that RCMP chatted with Fedan while at the hospital, but in the care of paramedics, before he was admitted.
There was nothing preventing police from reading him his rights and allowing him to speak with a lawyer before the blood sample was taken, Varesi said. (Kamloops This Week)
