Driver accused in tot's death denied drinking

A court in Surrey, B.C., heard a recording on Thursdayof a woman claiming she had not been drinking and that she had inexplicably lost control of her car before it hit and killed four-year-old Alexa Middelaer in May 2008.

Defence lawyer David Tarnowsaid he will argue againstadmittingthe recording as evidence, and against the admission of the testimony of a police officerwith whom his client, Carol Berner, spoke after she ran into the girl and her aunt, Daphne Johanson. The two were standing by the road feeding a horse. Johanson was injured in the collision.

The judge, who is hearing the case with out a jury, decided to rule later on the admissibility issue, but allowed the court to hear the recording of Delta police Const. Sarah Swallow asking Berner, now 56,how fast she had been going at the time of the incident.

"Oh, at the most 60," Berner is heardsaying.

"Any issues with the car?" Swallow asked.

"I couldn't believe it wouldn't slow down," Berner said. "It just kept going from left to right."

Swallow, whotestified after the recording was played, said she could not smell alcohol while speaking to Bernerand the accused at first denied having been drinking.

Swallow said a few moments later, afterturning off the police recording device,she asked Berner again about drinking.

Berner then admitted she'd had two glasses of wine about three hours before the collision, Swallow testified.

The officer said she demanded a breath sample from the accused, which indicated a blood alcohol readingabove .10, higher than the legal driving limit of .08. The roadside Breathalyzer used did not give a precise reading.

"I advised her she was going to be arrested for impaired driving," Swallow told the court.

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.

Tarnow said outside court that he would argue that police did not follow proper procedures and violated Berner's charter rights in taking the first breath sample.

"I've brought on a motion to exclude some of this evidence, because there were some rules that were broken by police when they gathered the evidence."

Alexa Middelaer's parents said they are putting their faith in the legal system.

"We know there is a very high burden of proof to lay an impaired charge," said Alexa's mother, Laura Middelaer. "But to get a conviction on it, that's another matter."

Berner is charged with impaired driving causing death and dangerous driving causing deathin Alexa Middelaer's case and impaired driving causing bodily harm and dangerous driving causing bodily harm in connection withAlexa's aunt, Daphne Johnson.