The lawyer for Carol Berner outlined arguments in a Vancouver courtroom yesterday morning as he appealed his client's conviction on charges stemming from a fatal collision in 2008.
David Tarnow asked the B.C. Court of Appeal judges to acquit his client on all four counts or order the case go to a new trial.
He outlined three main points where he felt the trial judge erred: the question of whether Berner was detained at the scene before she was read her rights; whether the officer at the scene had reasonable suspicion to demand a breath sample; and the destruction of a key piece of evidence, Berner's car, before she was charged.
During the trial, Tarnow moved to have all the charges against his client dismissed because, he said, her team had been unable to make a full defence.
Berner was convicted of impaired driving causing death, impaired driving causing bodily harm, dangerous driving causing death and dangerous driving causing bodily harm in the crash that killed four-yearold Alexa Middelaer and seriously injured her aunt, Daphne Johanson, in East Ladner.
On May 17, 2008, Alexa and Johanson were feeding a horse in the 4300block of 64th Street when a car plowed into them.
The little girl was fatally wounded and died later at B.C. Children's Hospital.
Johanson was seriously injured, spent four weeks in the hospital recovering and several months in a wheelchair.
Berner was convicted on all four counts after a four-week trial last summer. In November, she received a two-and-a-half-year jail sentence and a five-year driving ban. Her lawyer quickly launched an appeal.
She has been out on bail pending her appeal since last November.
During the trial last year, the Crown argued Berner was not only impaired at the time of the crash - she told an undercover police officer that she had consumed three glasses of wine before getting behind the wheel of her car - but that she was also driving dangerously.
After registering a "fail" on the roadside breath test, the samples the accused provided at police headquarters about three hours after the crash registered at .06 and .04.
During the trial, Tarnow pointed out that there had been a recall notice issued for steering and braking defects on the 2000 Oldsmobile Intrigue.
A mechanic who inspected the car for Delta police testified he did not see any problems with the steering or the braking systems when he inspected the car.
In his closing submissions at trial, Tarnow argued there was no way to prove beyond a reasonable doubt that Berner's car had not experienced some kind of mechanical failure.
He stated the defence had not been given an opportunity to fully investigate this possibility because the car was sold for scrap in late 2008.
jkerr@delta-optimist.com
