Over the limit

Apressing legal question has just been answered by a judge of the Supreme Court in Nova Scotia – well, not a pressing question, but at least one of whether common sense exists in the courts.

It’s the question of whether or not you can be convicted of drunk driving while you’re not actually driving – in fact, when you are pushing your broken-down all terrain vehicle home in freezing rain at 1 a.m.

The case involves Thomas Darrah from the Nova Scotian town of Hubley.

Here’s how Judge Gerald Moir described the incident in his verdict: “One night five years ago, Mr. Darrah drove his ATV deep into the woods next to this home in Hubley. A mechanical failure made the ATV inoperable.

Mr. Darrah met up with other ATV enthusiasts and, thinking he would spend the night with them, had drinks. The group became unpleasant. Mr. Darrah got a tow several kilometres towards his home. He pushed his ATV another two kilometres to the entrance of the trail he had followed, arriving there just before two in the morning. He met a police officer.”

When he saw the police officer, he sat on the only seat on the ATV – the driver’s seat. The keys were in the ignition so Darrah could use the headlights.

The rest, as they say, is history. Darrah was taken to the police station, given the breathalyzer, and charged with impaired driving and driving with more than .80 milligrams of alcohol per 100 millilitres of blood.

Darrah’s first trial in the case resulted in an acquittal.

The judge in that trial weighed the risks of an accident, and pointed out that there wasn’t much that could happen: “There was little to no risk that Mr. Darrah could have unintentionally set the ATV in motion, given the ATV was inoperable, did not roll unless pushed, and the surface was flat. … The ATV could not move, except manually, because it was broken …” Her verdict, in the end, was that Darrah wasn’t in “care and control” of the vehicle – furthermore, she argued it took too long for Darrah to receive the breathalyzer.

The Crown appealed – in part, arguing that, even though Darrah was tired after pushing his ATV for two kilometres, the very fact he sat in the driver’s seat was enough to convict him, despite the fact the ATV couldn’t be driven. Once again, the court acquitted Darrah.

What’s interesting, though, is how long this case has gone on.

Drinking and driving is a scourge. It threatens innocent lives every day.

But while this case surely should have been fought in court the first time, fighting it again, and having it hang over someone’s head for five long years, seems unreasonable.