Breathalyzer evidence allowed in Ladner case

Breathalyzer results taken at the scene of a crash that killed a four-year-old girl feeding horses by the roadside in Ladner, B.C., two years ago have been ruled admissible.

Alexa Middelaer was killed and her aunt Daphne Johanson was injured when they were struck by a car driven by Carol Berner, 56, in May 2008.

Last week in B.C. Provincial Court in Surrey, Berner's lawyer David Tarnow challenged the Breathalyzer results, arguing that her charter rights were breached because the officer did not follow proper procedures.

On Monday the judge ruled to accept the evidence from the Breathalyzer, but not to accept Berner's alleged admission to a police officer at the scene that she drank two glasses of wine about three hours before the collision.

Delta police Const. Sarah Swallow testified about the admission earlier in the trial, but the judge, who is hearing the case without a jury, decided to postpone the ruling on whether the evidence would be admissible.

Last week Swallow testified she demanded a breath sample from the accused, which allegedly indicated a blood alcohol reading above .10 - higher than the legal driving limit of .08. - but said the roadside Breathalyzer used did not give a precise reading.

Another breath sample, taken later at Delta police headquarters, showed that Berner was then not over the legal limit, but police decided to recommend charges anyway, Swallow testified.

Berner is charged with impaired driving causing death and dangerous driving causing the death of Middelaer and impaired driving causing bodily harm and dangerous driving causing bodily harm in connection with Johanson.