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HomeMy WebLinkAboutThe Citizen, 1991-03-06, Page 25THE CITIZEN, WEDNESDAY, MARCH 6, 1991. PAGE 25. Judge reserves judgement in care and control case Judge R.G.E. Hunter reserved judgement Feb. 27, in a case of a woman who appeared in Ontario Court, Criminal Division accused of having care and control of her vehicle while have more than 80 mg. of blood alcohol content. Judge Hunter withheld his judgement while he studied prece­ dents as to what constituted having care and control of the vehicle. Defence attorney Brian Linley had argued that because the accused, Gail N. Leachman of Leopold St., Wingham, had not been in the vehicle which was in the ditch when police arrived, she did not have care and control of the vehicle. Constablle Dennis Thompson of the Wingham O.P.P. detachment testified that on Oct. 5, 1990 about 12 noon he had received a report of Obituaries HOWARD CLARK Howard Clark of Brussels died at Callander Nursing Home on February 26, 1991. He was 83. Mr. Clark was the beloved husband of Mary Clark of Brussels and the dear father of Gordon Clark of Ethel. He will be mourned by his grandchildren: Bonnie and Joe Grubb of Ethel, Bradley and Wen­ dy Clark of Ethel. James and Cindy Clark of Monkton. Perry and Donna Clark of Brussels. Robert Clark and Sharlene Clark, both at home. He is also survived by six great-grand­ children: Holly and Chris Grubb. Shannon and Samantha Clark and Devin and Amanda Clark. He was the brother of the late Vernea Clark. Funeral services were held at Betts Funeral Home in Brussels at 2 p.m. on Thursday, February 28. Rev. Cam McMillan officiated. Honorary pallbearers were: Perry- Clark, Jim Clark, Brad Clark, Rob Clark, Bennie Bone and Gerald McArter. Spring interment will be held at Brussels Cemetery. In remembrance donations to the Ontario Heart and Stroke Founda­ tion would be appreciated. a vehicle in the ditch on the 30-31 sideroad of Grey Township near Concesison 3. When he arrived at the scene he found a car in the ditch with two people present, a male and a female. When he asked who was the driver of the vehicle the female said she was. Constable Thompson said it was obvious both were intoxicated. The man was unsteady on his feet and belligerent and refused to give his name. The female was co-operative but her eyes were red and glassy and she had the smell of alcohol on her breath and admitted having consumed alcohol earlier in the morning. Both people were stand­ ing near the car that had the keys in the ignition but was not running. When Constable Thompson questioned the female in the back seat of the cruiser he asked her repeatedly if she was the driver of the vehicle and she said she was. He read her the demand for a breath sample in the roadside screening device and she blew a fail. He arrested her and waited for a tow truck to arrive to haul the car out of the ditch before taking her, accompanied by Const. Pollard, to the Wingham OPP detachment where she was given a breathalyzer test which showed blood alcohol ratio above the legal limit. Mr. Linley called no defence witnesses but argued for dismissal on three grounds. He said there was no evidence in court Constable Thompson had notified Ms. Leach­ man of her legal rights to call a lawyer at the time of the arrest. Judge Hunter asked that a tran­ script of Constable Thompson’s testimony be prepared before the next court date in Wingham on March 27. Mr. Linley also argued that since there was another person at the scene of the accident he was equally in care and control of the vehicle as Ms. Leachman. Her testimony that she had been driv­ ing the car did not mean she was in care and control when police arriv­ ed, he argued. He argued that when police arrived there was another vehicle present trying to pull the car out of the ditch and Ms. Leachman was just standing around watching. “Does she have care and control?” he argued. Crown Attorney Liz Maguire argued that Ms. Leachman ob­ viously had care and control of the vehicle when it went in the ditch and there was no evidence she had given up care and control. Judge Hunter was concerned about yet another aspect. There is a legal precedent that a breath test should be administered within two hours of the offence. The breath test in this case wasn’t administer­ ed until nearly 2 p.m. which, he said, may have been over the two hour limit because the only evi­ dence the police gave as to the time of the accident was that they were notified “shortly before noon”. Ms. Maguire argued that the accident was shortly before noon and the test was shortly before two so it indicated it was within the two hour limit. Judge Hunter, however, said there was no way of knowing what time “shortly before noon” was and it could be beyond the two hour limit. Pending further study of prece­ dent cases he postponed his deci­ sion to the March 27 court. 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