Thomas Earl Darrah of Hubley, Nova Scotia, is able to “enjoy life again” after his stressful five-year court battle has come to an end.
According to court documents released last Wednesday, the Crown’s attempt to appeal Darrah’s acquittal failed at the Supreme Court of Nova Scotia. It’s a case that seems to answer the question of whether or not you can be convicted of drunk driving while not actually driving.
On the night of Nov. 28, 2010 Constable Isabelle Jacques, a member of the Tantallon RCMP, found Darrah while he was pushing his broken down all-terrain vehicle (ATV) along a wooded trail.
According to court documents, Darrah testified the keys to his ATV were in the ignition so he could use the vehicles lights to illuminate the path ahead. Darrah testified he was sitting in the drivers seat when he encountered Jacques because he was taking a break.
However, after Jacques smelled alcohol on his breath Darrah was arrested and then charged with impaired driving and driving while over a .08 blood alcohol content – the legal standard upon which someone can be charged criminally.
The basis of the appeal hinged on whether Justice Barbara Beach, the judge who acquitted Darrah last year in Nova Scotia provincial court, made an error with her interpretation of the law. The appeal focused on the charge of “care and control of a motor vehicle” and an error of law in her application of facts as to what “constitutes the taking of blood samples… as early as practicable.”
“An allegation of an error of law on the part of a provincial court judge is very commonly seen on a notice for appeal,” said William Leahay, a lawyer who has specialized in criminal law during his 36-year career. Leahay had no connection to the case.
Leahay explained that only 15 to 20 per cent of appeals are successful. But because of the unusual set of facts in this case, he said he wasn’t surprised the Crown decided an appeal was worthwhile.
Justice Gerald R.P. Moir oversaw the case for the Nova Scotia Supreme Court.
Justice Moir found that there was no error in Beach’s application of facts and law on either charge. After reviewing the facts of the case he found no reason to change the previous ruling and dismissed the appeal.
Mark Knox, who represented Darrah in court, said his client is pleased to finally be done with legal proceedings.
“Long trials, you know what that means? Stress and expense,” Knox said. “[Darrah is] grateful to be where he is and that he’s acquitted.”
In last year’s ruling, Justice Beach acquitted Darrah on the charges of impaired driving and driving while over a .08 blood alcohol content (BAC).
Since Darrah’s ATV was inoperable when he was found to be pushing it back home, Justice Beach ruled that he had not been in care or control while pushing the ATV or driving with over a .08 BAC
The requirements to administering a breathalyzer test can be found below.
Justice Beach pointed out both of the clauses must be proven independently of one another.
She determined there were four periods of delay before the breathalyzer was administered. The judge ruled that only two of the four delays were found to be reasonable and as a result the “as soon as practicable” requirement had not been met, clearing Darrah of all charges.
Knox says he isn’t surprised with the outcome of the case and the acquittal of his client.
“[Trial] Judges hear the evidence and make assessments about truthfulness,” Knox said. “You’d have to find some really egregious mistakes that are very clear before the appeal court can say the [judge’s ruling] was wrong.”