Sukhvinder Singh Rai, 36, pleaded several times to Burlington OPP breathalyzer technician Const. Hermano Clerigo to “please help me” after being told that his readings were 226 and 220 mg of alcohol in 100 mL. of blood. The second test was completed at 8:56 p.m., nearly five and half hours after the raised bucket of the dump truck Rai was driving slammed into the James N. Allan Burlington Bay Skyway on July 31, 2014.
Rai has pled not guilty to impaired driving, driving with an illegal blood alcohol level, dangerous driving and mischief endangering life in connection with the incident.
“Sir, will you please help me,” the 5-foot-6, 165-pound Rai asks Clerigo in a police video tape.
“My hands are tied. I didn’t put you in the position. You should know better than to drink alcohol and drive a big truck like that,” Clerigo admonishes the accused.
Prosecutor Todd Norman asked the officer whether he noticed any obvious signs of impairment on the accused, a married father of two.
Clerigo said he didn’t.
“When you have a reading of 226 mg you don’t have to be falling down drunk. It depends whether he is a seasoned drinker. You would think that (there would be obvious impairment) but that is not always the case. I’ve encountered people all the time with high readings, but impairment signs are non-existent.”
While Rai’s readings are high, the issue becomes whether they can be used against him. The OPP has admitted officers did not read the accused his rights within the statutory three-hour window after the crash for the officers to be able to demand a breath test.
Defence counsel David Locke is arguing that because Rai’s rights were not protected and the breath tests came outside the three-hour window set out in the Criminal Code of Canada that the readings should be ruled inadmissible.
Ontario Court Justice Fred Campling, who is hearing the judge-alone matter, is expected to rule on that portion of the case next week.
Meanwhile a senior OPP criminal investigator admitted Wednesday that the force bungled the early part of the investigation by not ensuring Rai was told his rights with respect to a demand for a breath test.
Det. Bruce Powell came to the scene to interview Rai, who was sitting in the back of Const. Andrew Halliday’s cruiser at the scene. But Powell said he was too busy assessing the scene to interview Rai, who continued to wait without being cautioned.
“Why did you not tell Halliday ‘Look I’m not close to interviewing Rai. I will be hours figuring this out?'” Locke put it to Powell.
“In hindsight, you would be correct,” Powell replied.
“Why did you not, as a senior officer, why didn’t you tell Halliday to read him (Rai) his rights and give him a caution?” Locke continued.
“It’s a misstep on my part,” Powell concurred.
Later Locke turned his sights on Halliday, who can be heard on the police video discussing with Clerigo that he had been at the crash scene for three hours.
Locke suggested Halliday realized it was beyond the three-hour limit to request a breath sample.
“You knew before my client provided a sample that you were making the demand outside the three-hour limit, right?” Locke put it to the officer.
“I never turned my mind to it,” Halliday answered.
“You knew there was a three-hour limit?’ Locke continued.
“It didn’t come to mind at the time,” Halliday answered.
Locke was unrelenting.
“I suggest to you directly you knew when you made the demand for my client to provide a breath sample, you knew it was outside the statutory three-hour limit and did so anyway,” the defence counsel continued.
“No,” the officer said.
“I suggest as well you allowed the tests to proceed knowing that was the case,” Locke said.
The officer denied the assertion.
The trial continues Thursday.
Source (with video): The Hamilton Spectator