Motorcyclist acquitted after judge accepts drinking was after accident

A Dubuc man who drove his motorcycle off a highway and careened down a steep embankment while swerving to avoid a moose has been acquitted of two counts of impaired driving after a judge accepted his “post-driving consumption” defence.

“September 27, 2017 was not a good day for Jesse Burnett,” Yorkton provincial court Judge Ross Green wrote in the first paragraph of his 15-page decision, filed with the court on Aug. 31.

That night, Burnett was on his way to deliver 12 cans of beer to a friend when his motorcycle started to sputter.

Abandoning that plan, he headed for nearby Whitewood, but ended up calling a nearby farmer to bring him some fuel, Green wrote in the decision.

After the farmer showed up with a jerry can, Burnett rode to Whitewood, where he topped up his tank. Then, because his bike was unregistered and he was not permitted to drive after dark, he started riding home to Dubuc along Highway 9, the decision states.

Around 8:45 p.m., while riding through the Qu’appelle Valley, Burnett saw the moose in the road, locked his brakes and went off the road and down the embankment. He suffered injuries to his ribs and head and broke his leg, according to the decision.

“Mr. Burnett said that, after the accident, he remained near his motorcycle and drank two beer from his knapsack … Eventually, given his location, he realized no one was going to stop, and he dragged himself up to the shoulder of the highway,” the judge wrote.

After catching a lift home with a passerby, Burnett said he drank two more beers, followed by another three while another friend drove him to hospital in Esterhazy, where he arrived after 11 p.m., for a total of seven beer, the judge wrote.

Burnett had previously “used alcohol as a pain killer and (the friend) clearly believed (he) was doing so at that point,” the decision states.

According to the decision, Saskatchewan RCMP officers began looking into the crash around 9 p.m., but did not obtain a breath sample until 11:54 p.m., when Burnett showed up at the hospital. He was subsequently charged with impaired driving and driving over .08.

A motorist who stopped after the crash testified Burnett seemed dazed after the collision, told different stories about the crash and admitted to drinking.

Two witnesses further testified that Burnett’s clothes and breath smelled of booze, and that he seemed confused.

Green, however, disagreed. “I view all of this evidence as equivocal: as consistent with a person who was dazed from, and had beer spilled on him as a result of, an accident and who then drank beer in the ditch … as it is consistent with a person who was impaired by alcohol at the time of the accident.”

Green went on to note that the farmer who brought Burnett some fuel before the crash testified that he believed Burnett was sober, as he was a friend and had seen Burnett intoxicated in the past, and he was not slurring his words or struggling to ride.

“Taken together, I am left with a reasonable doubt that Mr. Burnett’s ability to operate his motorcycle was impaired by alcohol,” Green wrote before acquitting Burnett of both charges.