HomeMy WebLinkAboutThe Citizen, 1989-11-29, Page 24PAGE 24. THE CITIZEN, WEDNESDAY, NOVEMBER 29, 1989.
Witnesses fail to convince judge man wasn’t driving
An Auburn-area man will be
sentenced January 24 for driving
while his licence was under suspen
sion after being found guilty in
Provincial Court in Wingham,
Wednesday.
David J. Franken, R.R. 2, Au
burn had claimed during his trial
before Judge R. G. E. Hunter that
he had not been driving the truck
stopped by police after a stag and
doe party in Bluevale on July 31,
1988. x
Constable Ken Balzer of the
Wingham Detachment of the On
tario Provincial Police stated that
he was sitting in an unmarked
police cruiser at Tolton Motors in
Bluevale waiting for people to leave
the party in the Bluevale hall. He
said he heard tire squealing and
saw three vehicles come to a comer
and stop: two pickups and a white
Camaro. The front pickup, he said,
was a dark colour and from it he
saw a man and then a woman get
out of the driver’s side and go back
to talk to the occupant of the second
truck. When they got back into the
vehicle, the woman got in first
through the driver’s door followed
by the man, he said.
The two trucks then went
through Bluevale and out into
Morris township, he said.
The Constable testified he
caught up with the second of the
vehicles, the lighter coloured truck
and using his flashing light, got it
to pull over. As he talked to the
occupant, Tom Franken, the other
truck went ahead, then turned and
came back, driving slowly. He
hailed the driver and made a
motion to stop. Constable Balzer
stated that with both the flashlight
he was carrying and the lights of
the stopped vehicle, he could see
that the driver of the second truck
was a man and a woman passenger
was on the other side of the seat.
He said the truck didn’t stop
immediately but went down the
road about 1000 feet before stopp
ing. By the time he reached the
truck, he said, there was a woman
behind the wheel. The man, David
Franken, was asked for his owner
ship and drivers licence but inform
ed the officer that his licence was
under suspension from a June 1988
conviction for impaired driving.
He was charged later with driv
ing while his licence was under
suspension although only a High
way Traffic Act charge was laid at
the time.
Defence attorney Michael Don
nelly questioned Constable Balzer
as to whether he could really tell if
it was a man and not a woman who
was driving given the fact the
vehicle was moving and he was
looking into the headlights of the
oncoming vehicle. Constable Bal
zer argued, however that the truck
was only moving at 10-15 miles per
hour as it approached and he felt it
was going to stop until the driver
realized it was a police officer who
was signalling it to stop. He had
time enough to see that it was a
man at the wheel, he said.
Mr. Franken, testifying in his
own behalf said he had been
drinking at the party but his
girlfriend, Lisa Noble, was doing
the driving for him. He said they
had actually been behind his
brother Tom as they approached
the corner and had flashed their
lights to get him to stop so they
could tell him about a shortcut
through the backroads to home.
After leaving the corner they pulled
ahead of Tom to lead the way
home, David Franken said.
Later when they saw Tom’s truck
stop on the backroad, he said, Lisa
went to the next intersection,
turned around and came back to
see why. When they realized it was
a police officer who was stopping
them Lisa stopped about 60 feet
away, he said. They had hardly
stopped when the police officer
appeared at the side of the vehicle,
he claimed.
Ms. Noble, of Belgrave, corro
borated most of the story but later,
under cross-examination by Crown
Attorney Robert Morris about the
white Camaro, said the vehicles
had made two stops, once at the
comer as described by David
Franken and once earlier when she,
David and Tom Franken had all
gotton out of their vehicles to talk
to the driver of the Camaro.
Tom Franken told the same story
as his brother. Neither mentioned
the white Camaro. When question
ed by Mr. Morris on the subject,
Tom Franken said he didn’t re
member any white Camaro and
didn’t recall David and Lisa getting
out of their vehicle to talk to him.
In his summation Mr. Donnelly
said there was a question of the
credibility of the police officer’s
identification of the driver given
“the very short time’’ he had to see
as the vehicle approached him.
There was also the evidence given
by the three defence witnesses that
Lisa Noble was driving, he said'.
Judge Hunter asked what about
the evidence of the vehicles stopp
ing at the stop sign and the order in
which people got out of the vehicle
but Mr. Donnelly said he couldn’t
comment on that.
Judge Hunter said he was satis
fied beyond a reasonable doubt
that Mr. Franken was indeed
driving the car. He said Constable
Balzer had two opportunities to see
that the driver was male. He said
he felt the reason the truck
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continued after it was hailed by the
officer waS so that the occupants
could switch places.
Sentencing was postponed until
January 24 after Mr. Franken,
through Mr. Donnelly, told the
court he would be laid off from his
construction work in January and
would prefer to serve his jail
sentence at that time. Judge Hun
ter had been prepared to sentence
him to a 60 day term to be served
on weekends. Judge Hunter re
minded him that his licence was
under automatic suspension as of
that day.
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