Her Majesty the Queen - v. -, 2015 SKPC 86

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 086 Date: June 4, 2015 Information: 44335199 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Guled Dubet Appearing: Tom Macnab For the Crown George Green For the Accused JUDGMENT M.L. GRAY , J Background [ 1 ] Mr.

Dubet was charged on June 11, 2014 with operating a motor vehicle while his ability to do so was impaired by alcohol or drug and secondly, with operating a motor vehicle after having consumed alcohol in a quantity such that the concentration in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. The trial proceeded as a blended trial and voir dire as Charter issues had been raised. At the outset of the trial, counsel for the accused advised that identity was admitted.

[ 2 ] The issues are straightforward and centre on whether there was a breach of the right to counsel of choice and whether the offence of impaired driving has been proven beyond a reasonable doubt. There is no question that the accused had been properly informed of his right to counsel; the question is whether those rights were adequately implemented. Evidence on the Voir Dire [ 3 ] Constable Madsen testified that on June 11, 2014, he was on duty and working with a partner, Constable Smith.

He identified a video that captured his encounter with the accused; the disc of the recording was marked as Exhibit D-1. [ 4 ] Constable Madsen testified that once the accused was in detention, he was booked and taken to a phone room as depicted on the video. He asked the accused which lawyer he wished to call, told him that he could not recommend a lawyer and again advised the accused of Legal Aid. The accused did not ask for a specific lawyer so a call was placed to Legal Aid. When duty counsel answered the phone, the officer spoke briefly to the lawyer and then told the accused to pick up the phone.

The officer hung up and permitted the accused to have a private conversation. Following the call, he and Constable Smith approached the accused; his intention was to complete an Investigator’s Check Sheet and Constable Smith told the accused about his role as the breath technician. In the course of completing the Investigator’s Check Sheet, he asked the accused if he was satisfied with his call to a lawyer; the accused said that he was. The accused also understood why he was at the police station, acknowledged that he had received his rights to counsel and understood the police warnings he had been given.

In response to the question of whether he had been given an opportunity to call a lawyer, he said he had and was satisfied with that call. [ 5 ] The accused provided samples of his breath and, after the second sample, was arrested for driving a vehicle while over the legal limit and was again provided his rights to counsel. This time, when asked whether he wished to call a lawyer, he said he did not. The accused never expressed, to the officer, any dissatisfaction with his call to a lawyer.

If he had asked to speak to a lawyer at any time, he would have been given an opportunity. [ 6 ] The phone available for the use of the accused was one on which he could not dial out. The officer dialled the phone number and directed the accused to pick up the extension after the officer first confirmed that a lawyer had answered. The officer could not recall whether there was a phone book in the room occupied by the accused but could not see one on the video.

The accused was not provided with a phone book as he did not ask for a specific lawyer or for the opportunity to look for a lawyer. [ 7 ] He described the accused as “mostly cooperative” and had no concerns with respect to his level of comprehension. [ 8 ] In cross-examination, the officer acknowledged that he would have difficulty remembering this incident without his notes. He denied that he made the decision to call Legal Aid but acknowledged that he had no note with respect to giving the accused a choice of counsel. There was no phone book in the telephone room nor did he offer one to the accused.

The call to Legal Aid was placed at 4:18 a.m. and completed at 4:20 a.m. He acknowledged that he was well within the two hour limit to obtain a sample and there were no circumstances requiring the immediate taking of breath samples. Further, the officer testified that if the accused had wanted a specific lawyer he would have made a note of it and added that it is his habit to ask an accused person if they have a specific lawyer in mind. He did not recall if the accused asked to speak to Legal Aid or if he was merely agreeable when the officer suggested it.

His practice is to give an option to select a lawyer and then a further option of Legal Aid. His specific memory of the case at hand was that he asked the accused if he wanted a specific lawyer and the accused did not know what to do. The officer then reminded him of his right to a call to Legal Aid duty counsel but he did not recall the accused’s response to that. He then put the accused on the phone to Legal Aid duty counsel but could not recall the exact words exchanged leading up to that.

He was adamant that the decision to call Legal Aid was made by the accused. [ 9 ] Guled Dubet testified that he was born in Somalia and came to Canada in 1995. He is employed as an apprentice pipe fitter and works for PCL Energy in Fort McMurray. [ 10 ] He acknowledged that he was read his rights to counsel. He said that he wanted to call a lawyer and was taken to a small

room with a desk, table, phone and a glass window at the Saskatoon Police Service. There was no phone book in the room, nor was heoffered a phone book, directory assistance or a list of lawyers. When asked what the officer told him, the accused replied that the officer“said nothing” and did not ask which lawyer he wanted or if he had his own lawyer. He was given no options and simply told to pick upthe phone. When he did so, it was a Legal Aid lawyer to whom he spoke for two to three minutes. He then waited for further instructionand was told to provide breath samples.

He did not recall being asked whether he was satisfied with his call to a lawyer. He spoke toLegal Aid because he believed he had no other choice. [11] In cross-examination, he denied that Constable Madsen asked him if he wanted to talk to a lawyer when he got to detention;nor did he ask which lawyer he wished to call. He did not have a lawyer in Saskatchewan and did not ask to speak to any particularlawyer. He denied that he told the officer that he did not know who to call. Although he did not know a lawyer, he denied asking theofficer who he should call.

He denied that there was any discussion about duty counsel; he was simply told to pick up the phone. Heunderstood that he was speaking to a lawyer as the individual introduced himself as such. He could not recall if Constable Madsen askedhim if he was satisfied with that call but agreed that he never told the officer that he was not.

When asked whether he spoke to dutycounsel about calling another lawyer he said that he did not because he “thought he was a lawyer and there was no sense in callinganother lawyer”. [12] He acknowledged in cross-examination that he was satisfied with his call to Legal Aid and that he did not ask to speak toanyone else. He explained that he “didn’t know better”. He did not ask for a phone book and agreed that he would not have known whoto call even if he had been provided one.

He agreed that after being arrested for driving while over the legal limit he was again providedhis rights to counsel and he believed that he was asked if he wished to call a lawyer. He agreed that he did not call a lawyer because hehad already spoken to one. He confirmed that he had watched the video marked as Exhibit D-1 and that it showed him sitting withConstable Madsen for some considerable time. He agreed there was plenty of time to ask questions or express doubts about his lawyer. He further agreed that he did not hesitate to ask for his cell phone or to ask if he could return to work.

This comprised the evidence onthe voir dire. Positions of the Parties on the Voir Dire [13] Counsel for the accused submits that the accused was not given a choice of counsel and indeed, was led to believe that hisonly option was a call to Legal Aid. Even though the accused said that he was satisfied with his call, this does not cure the initialbreach. Counsel filed with the Court a number of cases including R v Willier, 2010 SCC 37 [Willier], R v Edgington, 2010 SKQB 381[Edgington], R v Foster, 2015 SKPC 17 , 2015 SKPC 017 [Foster], R v McLeod, 2013 SKCA 28 [McLeod], and R v Kreiser,2013 SKPC 107 [Kreiser].

Further, an analysis in accordance with R v Grant, 2009 SCC 32 would exclude the evidence obtainedsubsequent to the breach. [14] Crown counsel argues that Kreiser is distinguishable as the accused in that case was diligent in his request for a specificlawyer. In the case at hand, the accused did not express any dissatisfaction with his legal advice even though he had the opportunity todo so. Decision on the Voir Dire [15] In Edginton, the accused was placed in a room with a telephone and a telephone directory. When asked whether he wished tospeak to a lawyer, Mr. Edgington said that he did not have a lawyer.

This was the same response he had given when initially advised ofhis right to counsel. The officer again told him about the availability of Legal Aid and asked whether the accused would like to speak toduty counsel. The accused said he would and he was given privacy to consult a Legal Aid lawyer. On appeal, it was argued that theaccused was given insufficient time to decide which lawyer to call and that the officer gave him only one option: Legal Aid.

He says thathe should have been offered a list of lawyers or the telephone directory and that even after he said that he would speak to Legal Aid, heshould have been offered a list of other lawyers or the option of looking through the telephone directory. At para. 18, the Court said: ...In telling him of the availability of duty counsel when he said that he did not have a lawyer, Sgt. Gherasim did not interfere with hisright to a reasonable opportunity to consult counsel of choice. Sgt. Gherasim did not tell Mr. Edgington that duty counsel was his onlychoice. Sgt. Gherasim did not tell Mr.

Edgington that he had to decide immediately which lawyer to contact. There is no indication thatMr. Edgington’s choice to consult duty counsel was the product of coercion. Telling Mr. Edgington about the availability of dutycounsel, as the police were obliged to do, did not interfere with his right to choose counsel. Doing so presented him with a route bywhich to consult a lawyer, and Mr. Edgington chose that route.

[ 16 ] The Court went on to say that had Mr. Edgington still been undecided as to what to do after being told about duty counsel, it would have been appropriate for Sgt. Gherasim to then offer other alternatives such as a list of lawyers or the phone book. In applying the Supreme Court of Canada decision in Willier , the Court on appeal found that there was no breach of s. 10(

b) of the Charter . [ 17 ] Similar fact patterns emerged in Foster and McLeod . In McLeod , the accused was given a further option of contacting a friend or family member to obtain the name of a lawyer. In neither case was the accused offered a phone book or a list of lawyers. In both instances, the accused spoke to duty counsel. In McLeod , Klebuc C.J.S. said at para 12: In the

summary conviction appeal, the appeal judge concluded that although the police failed to fulfil “their implementational duty to Mr. McLeod” by not making a phone book available to him, their failure was superceded by the appellant having twice expressed satisfaction with his consultation with Legal Aid counsel. Consequently, the appellant had not been denied his right to counsel. The Court of Appeal, in finding that no breach of s.10 had occurred, specifically rejected the contention of the

summary appeal judge that the police had failed to fulfil the implementational duty to the accused: see para 15. [ 18 ] In Kreiser , the facts were quite different. There, the accused named two lawyers he wanted to consult. Indeed, the accused called his lawyer’s office on his cell phone from the police vehicle and, as it was almost midnight, reached only a message manager. As he did not break the connection, a portion of his interaction with the police was recorded as voice mail, and was tendered at the trial.

In that recording, the accused said that he wanted to speak to his lawyer to which the officer replied that Mr. Kreiser would be given an opportunity to contact his lawyer, but “if he doesn’t answer, then our hands are tied at that point, we have to continue with our investigation”: para 5. The accused was reminded about the availability of duty counsel. At the police station, the accused was taken to a phone room at 12:26 a.m. He asked to speak to a particular lawyer who had assisted him in the past. Alternatively, if that lawyer could not be reached, he named another lawyer he would like to consult.

The two lawyers named were not included on the list of lawyers posted in the phone room and the officer did not make any attempt to find alternative numbers for those named counsel. Mr. Kreiser asked for a phone book, but one was not provided. Instead, after his two unsuccessful attempts to reach “his” lawyer, he was reminded of the availability of duty counsel and that call was placed at 12:31.

He spoke to a lawyer for four minutes after which he said that he was satisfied with his consultation. [ 19 ] In finding that there had been a breach of s. 10, the Court distinguished Edginton and McLeod and several other cases by saying, at para 30: At the point that Cst. Kaip suggested calling Legal Aid, Mr. Kreiser had not abandoned the intention to contact his preferred lawyer. In fact, Mr. Kreiser had requested that a telephone book be made available to assist him in doing so. Far from being an unreasonable request, this is what one would expect of someone diligently exercising his right to counsel.

Instead of providing the requested assistance in locating information for Mr. Korpan, however, Cst. Kaip effectively steered Mr. Kreiser to Legal Aid. I am therefore satisfied that Cst. Kaip’s actions in this case went beyond merely reminding Mr. Kreiser of the availability of Legal Aid, and amounted to interference with the right to counsel of choice. Further, the Court found that the accused was diligent in his efforts to exercise his right to counsel and his failure to complain after speaking to duty counsel did not negate that diligence. [ 20 ] In the case at hand, there are discrepancies in the evidence.

Counsel for the accused argues that the notes of the officer with respect to choice of counsel are lacking; therefore, his evidence on that point is not reliable and the evidence of the accused is to be preferred. However, it is the view of the Court that the evidence of the officer is, in part, supported by the accused. The officer says that the accused said he did not know a lawyer; the accused acknowledges that he did not and that he did not ask to speak to anyone in particular.

This is consistent with the evidence of the officer who would not have known that the accused did not know a lawyer unless he had asked. Further, Exhibit D-1 reveals that the accused and the arresting officer appear to converse for about 30 seconds before the accused picked up the telephone receiver. This, too, is consistent with the series of events described by the officer and inconsistent with the depiction of the accused. On the evidence, it is clear that there was no phone book or list of lawyers provided to the accused; however, he did not ask as was the case in Kreiser .

There is no evidence of redirection of the wishes of the accused as in Kreiser . I

accept the evidence of the officer that he asked, and was told by the accused that he did not know a lawyer to call; the officer reminded the accused of the option of duty counsel and the accused exercised that option. Further, I accept that the accused was asked if he was satisfied with his consultation and that he said that he was. This question and answer were noted on the Investigator’s Check Sheet.

Even though the accused does not recall being asked this question, he does confirm that he made no complaint. [ 21 ] Apart from the fact that there was no phone book immediately available to the accused in the telephone room, the circumstances of this case closely parallel those in Edgington , and are on all fours with the facts in Foster and McLeod. The accused wanted to speak to a lawyer but did not name specific counsel. When told duty counsel was available, the accused agreed to exercise that option.

It is clear that there is no duty on an officer, in these circumstances, to offer a phone book and in the words of Currie J. in Edgington at para 15 : “the police are entitled to give the detainee credit for being able to think and decide. The police are entitled to give normal

interpretation to the detainee’s words and action.” They “are not obliged to suggest that the detainee may want to consider other choices.” [ 22 ] Accordingly, the Court is not satisfied that a violation of the accused’s right to a reasonable opportunity to consult counsel of choice has been established on a balance of probabilities. That being so, the Certificate of the Qualified Technician is admissible on the trial proper.

Section 24(2) Analysis [ 23 ] In the event that this Court is in error with respect to the existence of a breach, s. 24(2) of the Charter will be considered in accordance with R v Grant , 2009 SCC 32 [ Grant ]. As set out in Grant , any determination with respect to exclusion of evidence requires an inquiry along three lines: (

i) the seriousness of the state conduct which infringed the Charter right ; (ii) the impact on the Charter - protected interests of the accused; and (iii) the interest of society in having the matter adjudicated on the merits.

These factors are to then be balanced in a determination as to whether the admission or exclusion of the evidence would have a longer reaching effect on the administration of justice. [ 24 ] With respect to the issue of the seriousness of the Charter -infringing state conduct, it is the view of the Court, that if a Charter breach was found on the facts of this case, the nature of that breach would be at the lower end of the scale. Here, the accused was able to consult with Legal Aid and gave no indication to the arresting officer that he wished, at any time, to do anything else.

Throughout, the officer acted politely and in good faith. As pointed out in Edginton , there is no duty on the officer to continue to offer alternatives once the accused has given an indication that he will speak to duty counsel. In these circumstances, it cannot be said to be a serious breach or a blatant and wilful disrespect of the Charter rights of the accused and thus would weigh toward admission. [ 25 ] With respect to the effect of the breach upon the accused, this, too, was minimal.

The accused was able to freely ask questions about other matters that were pertinent to him, yet asked no questions about the rights that he had been given. He did not ask for a telephone directory and indeed, admits that he would not have known who to call even if he had one. As he exercised no diligence, it cannot be said that he was negatively impacted. He received legal advice before breath samples were provided and had the assistance of very able counsel at trial.

In light of this, it is difficult to find that the accused was negatively impacted and consideration of this aspect would favour admission. [ 26 ] The third arm of the analysis involves a determination of “whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence, or by its exclusion”: see Grant para 79 . In making this assessment, courts were directed to take into account not only the negative impact on the administration of justice by admitting evidence but also the negative impact of failing to admit evidence.

The reliability of the evidence and its importance to the prosecution are very relevant to the truth- seeking function of the trial process, and, as was pointed out in Grant at paras. 99-110 inclusive the results of breath sample analyses are generally considered reliable and their exclusion would end any prosecution for the offence of driving while over the legal limit.

Clearly, a consideration of this factor would weigh in favour of admission of the evidence. [ 27 ] On the whole, it is the view of this Court, that exclusion of the Certificate would tend to discredit the administration of justice and accordingly, the Certificate would have been admitted even in the event that these particular circumstances did constitute a violation of s. 10(

b) of the Charter .

Evidence on the Trial [ 28 ] Constable Madsen testified on the trial proper with agreement that his evidence from the voir dire would be applied. Constable Madsen was with Constable Smith in a marked police vehicle on 22 nd Street in the City of Saskatoon when he observed a vehicle turning off Avenue P; this was approximately 3:40 a.m. on June 11, 2014. His attention was drawn by a wide left turn that brought the vehicle into the centre lane. The vehicle then proceeded to weave in its lane of travel until it turned right on Avenue I.

It stopped for a stop sign and then signalled right, then signalled left, then turned right onto 22 nd Street without any signal. The vehicle continued on 22 nd Street to Avenue J and again turned right. As Avenue J is a dead end street, the vehicle made a U turn and met the officers as they were entering the street. The vehicle then proceeded to 20 th Street where it rolled through a stop sign before turning right. The vehicle was signalled to stop near Avenue Q.

Counsel for the accused conceded that there was no issue with the validity of the stop. [ 29 ] When the officer approached, the driver, who was the accused, had the window down and was told to put the vehicle in park. The vehicle rolled forward a couple of feet but the brake lights were on throughout. The accused seemed sluggish and had the appearance of “a deer caught in the headlights.” He had red, glossy eyes, and a blank stare that the officer interpreted as a “million yard stare” which “goes along with alcohol consumption or fatigue”.

He also noted a strong scent of cologne that seemed to have been freshly sprayed. He asked the accused to provide a driver’s licence and registration and to come to the patrol car for the purpose of an Approved Screening Device (ASD) demand. Counsel for the accused conceded that there were appropriate grounds for the ASD. Constable Madsen did not notice anything about the accused as he walked to the patrol car. [ 30 ] The ASD resulted in a fail and a demand for breath samples pursuant to s. 254(3) of the Criminal Code followed.

The officer identified the Certificate of Qualified Technician and indicated that he had completed the Notice of Intention and served a copy upon the accused sometime after 1:50 a.m. Once the documents had been served, the accused was asked whether there was a sober person available to take charge of him and, as there was not, he was placed in cells to be held until sober. He acknowledged that the accused pulled over fairly quickly after being signalled to stop and that it was not until they arrived in detention that he was able to smell alcohol from him.

Upon learning the accused’s address from his driver’s licence he noted that the residence was approximately one block away from the point where the accused was initially seen. [ 31 ] In cross-examination, he acknowledged that as the accused was a very cooperative person, the incident did not stand out in his mind particularly. Further, although the accused’s vehicle was weaving, it did remain within the lane with the tires coming very close to the lines. His notes refer to the accused straddling “boundary lines” of the lane. He also noted that it was unusual to enter Avenue J as it is a dead end street.

The accused slowed but did not come to a complete stop; the officer acknowledged that a sober driver might do that on occasion as well. [ 32 ] Constable Smith confirmed that he was working with Constable Madsen and also saw the accused’s vehicle southbound on Avenue P and making a sweeping wide turn onto 22 nd Street. He noted that the vehicle was on the right side of the centre lane and then corrected to the centre of the lane. The vehicle made a southbound turn onto Avenue I from the centre lane rather from the right turn lane. The vehicle stopped at a stop sign, signalled right, then signalled left.

The vehicle then turned right without any signal. It went one block then turned right onto a dead end street where it made a U turn, and proceeded to 20 th Street where it turned right without stopping at the stop sign. This was described as a rolling stop at approximately 5 km/hr. Both he and Constable Madsen thought the driver was either lost, impaired, or unfamiliar with the vehicle. As a result, they decided they would do a traffic stop; given the time of day, they were particularly concerned about impairment.

Constable Madsen approached the driver and Constable Smith kept watch to make sure that the reverse lights did not come on. He did notice that the vehicle rolled ahead a few feet and then it appeared to be placed in park. He had noted a strong smell of cologne from the vehicle even though the passenger window was up. In his experience it is common for people to attempt to mask odours. [ 33 ] Constable Madsen spoke to the driver and obtained a driver’s licence and registration; both officers returned to the patrol car.

In the patrol car they discussed the stop and ultimately decided that Constable Madsen would do an ASD demand. Although, Constable Madsen had seen some signs of impairment, he could not smell alcohol likely due to the smell of cologne. Constable Madsen again approached the driver while Constable Smith called for someone to bring an ASD. Constable Smith again approached the passenger side of the accused’s vehicle and noted that both windows were now down and a heavy smell of cologne was wafting from the vehicle. The accused was asked to come to the patrol car.

He noticed that the accused had very relaxed facial muscles and his face looked droopy. The accused walked slowly and precisely like he had to think about it. In the patrol car, the accused smelled of cologne and alcohol.

[34] Constable Smith served as the Intoxilyzer operator and described the condition and demeanour of the accused at the policestation as having “lazy relaxed facial expression, glossy eyes, smell of alcohol but extremely polite and cooperative”. He concluded thatthe accused’s ability to drive a motor vehicle was impaired. He described the accused as having a brighter facial expression and anormal gait on the day of trial. [35] In cross-examination, the officer conceded that wide sweeping turns were not unique to impaired drivers, nor were red, glossyeyes.

He agreed that there were no grounds to make an arrest for impaired driving prior to the ASD test. [36] This concluded the case for the Crown on the trial proper; the defence called no evidence. Decision on the Trial [37] The Court is satisfied that it has been established beyond a reasonable doubt that the accused was operating a motor vehicle onJune 11, 2014 in the City of Saskatoon, Saskatchewan. The Certificate of Qualified Technician, admitted into evidence, establishes thatboth at 04:45 and 05:06 the accused had a blood alcohol concentration of 170 milligrams of alcohol in 100 millilitres of blood.

As theprerequisites of s. 258(1) have been established, the presumption of s. 258(1)(

c) applies. Accordingly, the Court is satisfied that all of theelements of count two have been proven beyond a reasonable doubt and the accused is therefore found guilty. [38] With respect to the count of impaired driving, the Court must be guided by R v Stellato, (ON CA), [1993]OJ No 18 (CA), affd. (SCC), [1994] 2 SCR. 478 (SCC) [Stellato]. In determining whether the offence of impaireddriving has been established, the Court must be satisfied, beyond a reasonable doubt, that the ability of the accused to operate a motorvehicle was impaired to some degree by his consumption of alcohol.

If the Crown has proven beyond a reasonable doubt that the abilityof an accused to operate a motor vehicle is even slightly impaired by drug or alcohol, there is sufficient proof of the offence. This doesnot mean that only slight evidence will be adequate. Rather, the evidence as a whole must establish that such an inference canreasonably be drawn from conduct which is a departure from the norm.

That departure may fall upon a continuum from slight to great,but it must lead to no other reasonable conclusion but that the accused’s ability to operate a motor vehicle was impaired to some degreeby the consumption of alcohol and/or drugs. The evidence, taken as a whole, must establish that such an inference reasonably can bedrawn from conduct which is a departure from the norm. [39] Many decisions are written every year on impaired driving allegations. All are dependent on the particular facts proven withrespect to the manner of driving and the symptoms of alcohol or drug consumption.

In this case, the driving was very unusual: theaccused, first noted about a block from his home, seemingly drove in a circle, was weaving within his lane, entered a dead end street,appeared confused by his turn indicator (signalling right, signalling left and eventually turning right from the centre lane without anysignal), and rolled through a stop sign. No explanation was provided to the Court for any of this driving. The physical symptomsdescribed include: lazy, relaxed facial expression, red, glossy eyes, a blank gaze and a slow, precise walk.

Once the smell of colognedissipated, an odour of alcohol was noted from the accused to suggest that he had been consuming alcohol. I also had an opportunity toview D-1, the video of the accused at the police station, and noted nothing out of the ordinary with respect to the physical movements ofthe accused. [40] After carefully considering all of the evidence, I am satisfied that the ability of the accused to operate a motor vehicle wasimpaired by alcohol at the time he was driving.

Although the Court cannot draw an inference from a blood alcohol reading as to thedegree of impairment without the assistance of an expert to establish a correlation between the result and a particular level ofimpairment, the certificate does provide evidence of the existence of alcohol in the accused’s body. This fact can be considered incombination with any other evidence of impairment which has been proven (see: Impaired Driving in Canada, 2012/2013 Edition,Justice Joseph Kenkel at p. 118).

In the case at hand, the driving demonstrated by the accused was erratic at best: weaving, rollingthrough a stop sign, an improper turn, confusion with the turn indicator, and moving forward while attempting to place his vehicle inpark. In addition, minor physical symptoms were observed. A consideration of this evidence, along with the proof that there was alcoholin his body, leaves this Court with no doubt whatsoever that the accused’s ability to operate a motor vehicle was impaired by alcohol.

Accordingly, he is found guilty. [41] The accused having been found guilty of both counts, one count will be conditionally stayed pending the outcome of anyappeal.

_____________________ M.L. Gray, J