Regina v. Cho - Excerpt Reasons for Judgment Date:, 2003 BCPC 243

Citation: Regina v. Cho - Excerpt Reasons for Judgment Date: 20030401 2003 BCPC 0243 File No: 62334-1 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. EUNHYANG CHO EXCERPT FROM PROCEEDINGS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.C. CHALLENGER Counsel for the Crown: C. Grant Counsel for the Defendant: M. Stern Place of Hearing: New Westminster, B.C. Date of Hearing: January 7, 2003; April 1, 2003 Date of Judgment: April 1, 2003 [ 1 ] THE COURT: I am going to give oral reasons from the bench at this time.

Forgive me if they are not particularly eloquent. [ 2 ] Eunhyang Cho is before me on a two-count Information of impaired driving and over .08, both arising, as alternate counts, February 18th, 2002, here in New Westminster. [ 3 ] As a result of an earlier ruling, the certificate in relation to Count 2 was ruled inadmissible. Defence made a no-evidence motion that was not opposed by the Crown and that count has been dismissed.

We are now dealing only with Count 1, the impaired driving. [ 4 ] What occurred is that the police received civilian information about a vehicle being operated without one of the front-end wheel assemblies. In other words, it was driving on three tires and one axle. The vehicle pulled into a residential apartment block and a civilian witness from that apartment block described the driver coming in with sparks flying from the axle. The vehicle was stopped, the person got out of the vehicle and was described as staggering to the front door where they rang the buzzer.

The driver returned to the vehicle and attempted to move the vehicle again and managed to move only a couple of feet. The witness said that shortly thereafter the police arrived. That was the evidence of Mr. Adams. [ 5 ] Mr. Adams gave evidence that he himself is a reformed alcoholic and the person appeared impaired to him because they were staggering. It is clear that it was Ms. Cho who he was observing. [ 6 ] The police officers who attended were Constable Mastropieri and Constable Quaglia. Constable Quaglia was acting as Constable Mastropieri's trainer that evening. They located Ms. Cho behind the wheel.

She appeared to be unconscious. They had difficulty rousing her. They had to shake her. They described it took somewhere between 10 to 20 seconds, depending on their evidence, to wake her to the point where she was at least conscious. At that point they removed her from the vehicle, because they were concerned about fluids leaking from the vehicle and the potential risk from that, and took her to the police car. They supported her.

Constable Quaglia, in particular, had his hand under her armpit and supported her as she walked over to the vehicle. [ 7 ] The investigation went on with witnesses being interviewed, and eventually Ms. Cho was returned to the police station. [ 8 ] Aside from testimony from both officers that there was a strong odour of alcoholic beverage on her breath, the only other symptomology noted was that she was off balance or had difficulty walking at the scene. That difficulty was described by Mr.

Adams, who saw her going back and forth to the door, and by Constables Quaglia and Mastropieri in terms of getting her to the vehicle. Later there was evidence from Constable Mastropieri that while she was pacing at the police station he noted her steps to be uncertain. Other than that evidence, there was no other evidence of what I will refer to as the "classic" symptomology of impairment by alcohol. There were no indications of any watery, bloodshot eyes, no indication of slurred speech, no indication of any slack facial muscles, problems with fine motor coordination, nothing of that ilk at all.

Neither was there any indication that after she was roused from the car originally that she had any difficulties in terms of her level of consciousness or coherence. In fact, Constable Mastropieri testified that after removing her from the car, he engaged in a conversation with her for some 20 minutes, during which she was responsive. He described that later on she was more talkative and friendly. [ 9 ] In my view, the symptomology before me is curious. The evidence of symptomology of impairment by alcohol is minimal and equivocal, given the clear inference that Ms.

Cho had just been involved in a fairly serious motor vehicle accident. I also find it strangely inconsistent that she could be, on the one hand, so drunk that she would be almost unconscious behind the wheel and driving such a badly disabled vehicle, without any wheel at all, and to have been seen staggering, but on the other to have made such a rapid recovery.

Once she was roused and out of the vehicle she seemed to recover her consciousness and was thereafter coherent and rational and responsive with the police. After that time, the only evidence before the court of her intoxication or from which an inference of intoxication or impairment could be drawn is that for a brief period of time, some two minutes, she was pacing at the station and Constable Mastropieri noted her to have uncertain steps. [ 10 ] There is a further issue, although given what I have found so far a lesser issue, and that is one of the reliability of the police evidence.

On page 22 of the transcript, Constable Mastropieri is cross-examined about the fact that he did not note the odour of liquor he testified to in his notebook. One might infer that, this having been early on his career, he would have a clear recollection of these matters. But nevertheless, it is of concern to the court that he indicated that he may or may not note that down in an impaired driving investigation. One would think that a police officer would always make such a note and consider it an error not to.

In any event, although he purported to recall that, as well as conversation which occurred at the scene and information received at the scene from civilians or over the radio, he was unable to answer defence counsel's questions about what he was speaking to Constable Quaglia about in the hall during the course of the trial. [ 11 ] With respect to the test before the court, where there is evidence of physical intoxication by alcohol but no driving evidence, the evidence of intoxication must be compelling to safely infer therefrom that a person's ability to operate a motor vehicle was impaired by alcohol.

Where there is evidence of bad driving and physical intoxication, the inference need not depend solely on the physical signs of intoxication. Here, however, there is no evidence of her condition or of her driving before the motor vehicle accident occurred, only after. In my view, it would be unsafe to infer, without evidence of what occurred before the potential trauma of such an accident, that her ability to operate a motor vehicle was impaired.

In my view, it is likely or fairly likely that she suffered some kind of trauma in the accident, continued to drive because she was traumatized from the accident, may have lost consciousness briefly and then been roused and, once roused, recovered. In any event, the evidence before me simply falls short of proving beyond a reasonable doubt that whatever the officers observed that evening with Ms. Cho was due solely to alcohol or, in the absence of any evidence about how this motor vehicle accident occurred, that her ability to operate a motor vehicle was impaired by alcohol. [ 12 ] I have to acquit Ms.

Cho. (EXCERPT CONCLUDED)