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Judge's get-tough stance on drunk driving not borne out in court: review

JOE BRYKSA / WINNIPEG FREE PRESS files

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JOE BRYKSA / WINNIPEG FREE PRESS files

It was just last year a Manitoba judge raised plenty of legal eyebrows when he ignored a joint recommendation from lawyers and sent a first-time drunk driver to jail.

"I want the public to know that in imposing a jail sentence, I am sending a message, and a warning, that the gloves are coming off when it comes to these types of cases," provincial court Judge Ray Wyant said at the time.

Wyant said the culture of drinking and driving didn't appear to be changing, so it was high time the courts flexed their judicial discretion and did something about it. He said he hoped his fellow judges would follow suit.

So have the gloves really come off?

A Free Press analysis shows despite Wyant's message, the overwhelming majority of drunk drivers -- at least the ones who don't injure or kill anybody -- are walking out of court with their freedom still intact.

It's a sobering finding, especially considering 'tis the season right now for increased police enforcement as family gatherings and holiday parties are in full effect.

The Free Press studied the cases of every one of the 40 motorists arrested in Winnipeg during last December's police blitz. Of those, 29 cases have been resolved and 11 remain before the courts.

Several conclusions can be drawn, based on this snapshot:

1) You have little chance of 'beating' your arrest

Manitoba justice officials are a perfect 29-for-29 when it comes to securing convictions from the December 2012 docket. Not a single accused person has been acquitted entirely.

It's possible some of the 11 people who remain before the courts will fight the charge based on a technicality, and a few might win. But a recent Statistics Canada report shows more than 84 per cent of people charged with drunk driving get convicted. (By comparison, the combined conviction rate across Canada for all other criminal cases is 64 per cent.)

2) You will likely strike a plea bargain

A bit of background is required: The charge of impaired driving can be made out simply by a police officer making an observation of suspected impairment, such as swerving in the roadway, bloodshot eyes or slurred speech. A further charge of driving over .08 is then typically laid if the person agrees to give a breath or blood sample and fails. If the person refuses that test, a charge of refusing a sample is automatically laid.

In the 29 resolved cases, 27 of the accused were hit with two charges (either impaired and driving over the limit, or impaired and refusing a sample). Yet in all 27 cases, one of the two charges was stayed. Specifically, 11 refusing-a-sample charges, 10 driving-impaired charges and six driving-over charges were dropped.

Senior Manitoba Crown attorney Chris Vanderhooft admits his department will offer "significant incentives" to accused drunk drivers to plead guilty by agreeing to drop one of the charges. That often ends up being the refusing-a-breath-sample charge, as the data show.

"Most of the time it's used as an incentive. There is an interest in moving these cases along," said Vanderhooft. He said although this may reduce the overall sentence given an accused, or possibly keep aggravating information out of court, such as a high blood-alcohol reading, it's a necessary evil.

He notes that of the 40 cases the Free Press looked at from December 2012, nearly 75 per cent (29) were resolved without the need for a trial. That frees valuable court resources that would otherwise be bogged down.

In one such recent noteworthy plea bargain, Winnipeg Sun columnist Tom Brodbeck admitted on Dec. 11 to impaired driving and saw the Crown drop a charge of driving over .08. Brodbeck was arrested at 3:15 a.m. Oct. 12 after police spotted him weaving and nearly causing an accident on Portage Avenue near Ferry Road.

Brodbeck turned onto Douglas Park Road and failed to stop when trailing police put on their sirens. He then made a "sudden turn" into a driveway, ran over a flower bed and nearly struck a parked car, court was told.

It was two hours before police took a breath sample from him, defence lawyer Richard Wolson said. Brodbeck was immediately apologetic, telling police he made a mistake.

Brodbeck's blood-alcohol readings weren't disclosed, with prosecutor Garry Rainnie saying he didn't have proof of their accuracy at the time Brodbeck chose to plead guilty, just weeks after his arrest.

"The driving circumstances, in a way, as set out in the police report, clearly give the flavour this is not bare-minimum impaired driving," Rainnie told court.

Brodbeck was fined $1,400 and costs and given the mandatory minimum one-year driving ban as part of a joint recommendation to Judge Catherine Carlson.

3) You have little chance of going to jail if you are a first offender

Jesse Friesen must feel as if he got a lump of coal in his stocking. He's the Winnipegger of whom Judge Wyant made an example last year, giving him 14 days of custody after Friesen was caught driving back to Winnipeg from his cottage while impaired.

Of the 29 resolved cases, only five people actually were given jail terms, which ranged between 30 days and two years. Only two of those people were first-time offenders, but they also had other criminal charges.

The remaining 24 accused -- all first-time drunk drivers -- were given fines and driving prohibitions. Not one got the "gloves-off" treatment of which Wyant warned. Most sentences are given after joint recommendations from Crown and defence lawyers as part of the plea bargain.

Staff Sgt. Rob Riffel, commander of the Winnipeg police central traffic unit, admits those numbers are disappointing, considering the message police are trying to send.

"We always tell people when we stop them: 'You could be looking at serious jail time,' " Riffel said. "We're in favour of anything that will make people stop driving while impaired."

Vanderhooft said his department will often ask for jail for first-time offenders who have dangerously high blood-alcohol readings (say, triple or higher the legal .08 limit) or who don't take advantage of a plea bargain and choose to fight the case at trial.

But those cases appear to be the exception, not the norm. This is not just a Winnipeg thing, as national crime statistics for 2011 show only eight per cent of impaired drivers were given jail sentences.

4) You will pay a price and be inconvenienced for your dangerous decision-making

Of the 24 first-time offenders who were given fines, only two received the mandatory minimum of $1,000. However, none even came close to the maximum of $5,000; the most severe financial penalty dished out was $2,500.

Overall, the 24 first-time offenders were given total fines of $38,500, which amounts to an average of $1,604 per person. The five other drunk drivers who were given jail terms did not receive fines.

As well, all 29 of the convicted drunk drivers were given mandatory driving bans. Twenty-five first-time offenders got the minimum of one year, another first-time offender got 18 months and the three repeat offenders got two years, three years and 10 years, respectively.

By law, a first-time offender must be given a driving ban of between one and three years, a second-time offender between two and five years and a third or further offence must draw a ban between three years and life.

Riffel hopes, despite the threat of jail being somewhat remote, drivers will consider the potential consequences before getting behind the wheel drunk. He says every drunk driver is a potential killer.

"The time to decide whether to drive or not is not after having a few drinks," Riffel said. "Plan ahead; that's the most important thing."

mikeoncrime.com james.turner@freepress.mb.ca

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