Driver appeals conviction, seeks his freedom
A man convicted of impaired driving causing bodily harm is waiting to learn if he will be released from jail pending his appeal.
A man convicted of impaired driving causing bodily harm is waiting to learn if he will be released from jail pending his appeal.
Michael Schmidt is currently serving an eight-month sentence on the two counts.
In court earlier this week, Justice Ron Veale ordered that a bail supervision report for Michael Schmidt be filed by 4 p.m. today.
A hearing over Schmidt’s release will be held in Vancouver at a later date.
On Dec. 14, 2009, Schmidt was driving from Whitehorse to Haines Junction with Jessica Frotten and Michael Sanderson when his Honda car rolled on the Alaska Highway near the Takhini River Bridge.
Both Frotten and Sanderson were ejected from the vehicle. Frotten suffered a broken back, a torn aorta, broken feet, punctured lungs, several broken ribs and a concussion.
She is now paralyzed and uses a wheelchair.
Sanderson broke his right shoulder, left leg, multiple ribs and tore the ligaments in his left knee.
After a trial last fall, Schmidt was acquitted on two counts of dangerous driving and two counts of driving with a blood alcohol count of 0.08.
He was found guilty of the two counts of impaired driving causing bodily harm.
Schmidt has maintained that though he had been drinking beer at lunch prior to the crash, it did not impair his driving.
In his handwritten appeal documents, Schmidt, who is representing himself, argues his Canadian Charter of Rights and Freedoms were violated when his breath sample was taken by the arresting officer because there was not enough evidence to demand a sample.
“It was not established that I was over the legal limit of 0.08 per cent,” Schmidt wrote in his appeal documents.
In fact, he pointed out, expert testimony by Dr. Mariah Wallener rendered the calculation of his blood alcohol level invalid.
“The finding of my impairment was made on subjective grounds….” Schmidt stated, going on to note “very minor and circumstantial” indicators of his impairment.
Along with admitting to having had some beer with lunch, he noted he also had red eyes caused by the deployment of one of the car’s airbags.
The smell of alcohol, he argued, came not only from the beer he had consumed at lunch, but also from the beer his passengers had purchased exploding in the car and covering him during the rollover.
While witness testimony was largely favourable to Schmidt, he noted it may have also played a factor in the judge’s decision.
Schmidt also argues Veale seemed to believe it hadn’t been demonstrated that road conditions played a role in the crash when evidence at trial showed road conditions were a factor in the mishap.
Schmidt has maintained road conditions – including frost heaves and black ice – led to the crash.
“I believe that Justice Veale did not correctly measure the balance of fault for the accident between my actions and the road conditions that led to my vehicle sliding into the ditch at highway speed and rolling,” Schmidt states in his appeal documents.
“The defect in the road surface should have been clearly marked, which would have helped prevent the accident.”
In the court documents seeking his release pending the appeal, Schmidt notes that while he was convicted of assault in Victoria within the last five years, he was given a discharge after doing community service, submitting a written apology and having been on a year’s probation.
He was an upstanding and positive member of the community in recent years, Schmidt noted.
He has also been “of good behaviour” during his two months at the Whitehorse Correctional Centre, helping the inmate work crew build homes for Habitat for Humanity.
As he looks towards being released, he’s been in discussions with a number of potential employers, largely in the construction industry, the documents state.
Schmidt’s mother is proposed to act as his surety if he is released.
Linda Magill
May 24, 2012 at 3:22 pm
Is this guy serious…. “In his handwritten appeal documents, Schmidt, who is representing himself, argues his Canadian Charter of Rights and Freedoms were violated when his breath sample was taken by the arresting officer because there was not enough evidence to demand a sample.”
I guess the two people THROWN from the vehicle (and Jess now paralized) isn’t enough “evidence”....