Michael Schmidt was found not guilty last Thursday of impaired driving causing bodily harm to Jessica Frotten and Michael Sanderson.

The verdict delivered by Deputy Justice Stephen Hiller of the Yukon Supreme Court came on the afternoon of the fourth day of Schmidt's retrial ordered by the Yukon Court of Appeal in November 2012.

Schmidt, 32, showed little emotion after the judge delivered his decision. He did have a long hug with his mother and a friend who were in the courtroom for the verdict.

The accused was found guilty after the initial trial in October 2011. He was sentenced to eight months in jail but was eventually released pending the results of an appeal.

The Yukon Court of Appeal in November 2012 ordered the verdict set aside and a new trial held after finding the judge had erred in the initial trial.

Frotten remains paralyzed from the waist down as a result of the single-vehicle rollover just after 4 p.m. on Dec. 14, 2009 along the Alaska Highway west of Whitehorse.

Hiller said Thursday while there was evidence Schmidt consumed alcohol that day, there was nothing overwhelming to support a finding that it contributed to the rollover on a stretch of highway where frost heaves were common.

There was evidence Schmidt drank about six beers the night before the accident before going to bed at 3 a.m.

He got up at about 10 a.m. and a friend poured him a drink of coffee and Irish Cream, though Schmidt didn't drink it all once learned there was alcohol in it.

He shared a pitcher of beer during lunch at the Airport Chalet, but it does not appear he had a test sample at Yukon Brewery where he, Frotten and Sanderson stopped to buy beer before heading out for Haines Junction.

There was nothing to indicate Schmidt had consumed any beer during the drive, Hiller said.

The judge recalled the testimony of the waitress at the Airport Chalet who told the court she'd seen nothing to suggest there was anything wrong with Schmidt's ability to drive after the three finished lunch.

Similarly, the clerk at the brewery who knew Schmidt as a regular customer saw nothing to suggest he shouldn't be driving, the judge said in delivering his decision.

Hiller said the video tape from the Porter Creek Super A where they stopped to buy gas, and where Schmidt purchased a bottle of water, did not show any signs that Schmidt was impaired while filling up.

Testimony from those at the accident scene indicates there was nothing in Schmidt's conduct to suggest he was impaired, the judge said.

Two breathalyzer tests taken at the Whitehorse RCMP detachment three hours after the mishap both registered blood-alcohol levels of .07, or slightly lower than .08, the point at which a driver is legally impaired. Neither of the police vehicles at the scene was equipped with roadside

breathalyzer kits.

The judge said there was evidence Schmidt was driving fast, though he noted testimony that it was commonplace for highway travellers in the Yukon to exceed the speed limit.

There was also an indication he had slowed down after hitting two sections of frost heaves, one before the Drurys' Circle D Ranch, and one right around the ranch, the judge said.

Hiller said there was also evidence of more frost heaving close to the area where Schmidt's Honda Civic left the highway and rolled about 2.5 kilometres on the Whitehorse side of the Takhini River Bridge.

It would be reasonable, the judge said, to infer that Schmidt's blood-alcohol level was above .07 at the time of the crash, but perhaps not significantly above.

Hiller said in a case of assessing criminal responsibility, a finding of guilt requires the court to be certain beyond a reasonable doubt.

It cannot be based on speculation nor measured by probabilities, Hiller said.

"Accordingly, I find the accused not guilty.”