A Whitehorse man charged with impaired driving had a blood alcohol level below the legal limit when he was given breathalyzer tests by the RCMP.

In a hearing Wednesday to determine the admissibility of evidence, Yukon Supreme Court Justice Ron Veale was told Michael Schmidt's blood alcohol level was 0.07 about three hours after his car rolled on the Alaska Highway near the Tahkini River bridge west of Whitehorse.

The legal limit is 0.08.

The crash happened around 4 p.m. on Dec. 14, 2009. Schmidt's passengers, Jessica Frotten and Michael Sanderson, were both ejected from the car.

Frotten, then 21, suffered a broken back, torn aorta, broken feet, punctured lungs, several broken ribs and a concussion.

She spent several weeks in a medically-induced coma at an Edmonton hospital and now uses a wheelchair. It is unlikely she will ever walk again.

Sanderson, then 29, broke his right shoulder, left leg, multiple ribs and torn the ligaments in his left knee.

Schmidt faces six charges, including impaired driving causing bodily harm and the dangerous operation of a motor vehicle causing bodily harm.

According to the evidence presented so far, Schmidt claims his Honda Civic hit frost heaves on the highway and flipped.

He repeatedly denied having had more than two glasses of beer that afternoon from a pitcher the trio shared over lunch.

Despite the blood alcohol test coming back below the legal limit, Schmidt's lawyer, Gordon Coffin, argued yesterday the police officers violated Schmidt's rights because they did not have reasonable nor probable grounds to order the breathalyzer.

Coffin argued the officers only did so because no one brought a roadside tester to the scene.

The screening device used roadside provides a pass, fail or warn reading. The law only requires officers to have a suspicion of impaired driving in order to administer it.

The breathalyzer test, which provides a blood alcohol level, requires stronger evidence, the lawyer said.

In this case, Coffin argued, the officer did not subjectively believe he had enough to go from suspicion to reasonable or probable grounds and instead was "only concerned about saving evidence” which he had no other way of gathering.

RCMP Const. Ryan Hack, who arrested Schmidt, testified that what may have started out as just a suspicion of impaired driving, became stronger when he and Schmidt moved from outside to a police car to continue their conversation.

In the confined space, it became clear there was a smell of alcohol coming from Schmidt's breath, the officer said.

Hack testified Schmidt told him he had been travelling too fast and hit a bump, which caused the car to skid and leave the road.

The officer said he arrested Schmidt at around 5 p.m. because of the smell of liquor, the admission that he had been driving too fast, the fact that he admitted to drinking earlier in the day and his glassy water eyes.

The 30-year-old was originally charged with impaired driving. The charges were upgraded to impaired driving causing bodily harm once the officer found out more information about the extent of Frotten's injuries.

During cross-examination, Coffin asked whether Hack had considered if the smell of alcohol was actually coming from Schmidt's clothes.

The court has already heard that the trio had a large quantity of beer with them at the time of the rollover.

The officer said it was clear to him that the smell was coming from Schmidt's breath.

The lawyer also pointed out that watery eyes have many possible causes, including crying.

Prosecutor Bonnie Macdonald argued it didn't matter that the officers didn't have a screening device with them because they had grounds for the breathalyzer based on the evidence available.

An officer only needs to believe that a suspect was even slightly impaired by the consumption of alcohol, Macdonald said.

This morning, the judge agreed with the prosecutor, ruling that the breathalyzer results were not an unreasonable search and seizure.

Veale ruled the constable had enough to reasonably believe Schmidt may have driven while impaired.

In his ruling, the judge said he put less weight on the smell of alcohol and Schmidt's watery eyes, and relied more on the fact that Schmidt admitted to having drank that afternoon and to driving too fast.

The court does not require guilt beyond a reasonable doubt to rule that the officer believed Schmidt may have been driving under the influence, the judge said.

Today's testimony is expected to focus primarily on conflicting expert opinions surrounding the body's absorption of alcohol.

Schmidt's blood alcohol was tested twice at around 7 p.m. the day he was arrested, approximately three hours following the crash, Hack testified.

Both breathalyzer tests came back with a 0.07 reading.

This morning, the court heard from the prosecution's expert, Brian Image.

Image, a forensic alcohol specialist with the RCMP forensic lab in Vancouver, testified that based on his calculations, Schmidt's blood alcohol level was somewhere between 0.086 and 0.133 at the time of the crash.

This calculation is based on the assumption Schmidt did not consume any alcohol for at least 30 minutes prior to the crash and that the body eliminates alcohol in a linear fashion, Image testified.

During cross-examination, Image admitted that without that 30-minute window, his calculations could be too high.

A change in the time of the accident could also affect results, he said.

The trial was scheduled to continue this afternoon and wrap up tomorrow.