A Manitoba cattle farmer involved in a fatal highway collision has been acquitted of impaired driving, despite a judge’s belief he tried to cover up evidence he had been drinking at the time of the accident.
Instead, Frankie Kehler was convicted of a single count of failing to stop at the scene of an accident.
Thirty-year-old Adam Sinclair was struck down by a truck on Highway 6 near Ashern after his own vehicle rolled over into the ditch and he wandered back onto the road on May 4, 2019.
Kehler, who testified he initially thought he had struck an animal, told court he didn’t start drinking until arriving home and before calling 911.
“In my view, the only reasonable inference from Mr. Kehler’s conduct and bizarre explanations is that he knew he had hit a person and that he started to drink when he got home to camouflage the fact that he had been drinking before the accident.” — Justice Shawn Greenberg
Justice Shawn Greenberg said she didn’t believe Kehler but ruled the evidence of an RCMP forensic alcohol specialist who calculated his blood alcohol level was compromised by incomplete information.
"I reject Mr. Kehler’s evidence that he did not know his truck struck a person and his testimony does not raise a reasonable doubt about his intent," Greenberg ruled in a written decision released last month. "In my view, the only reasonable inference from Mr. Kehler’s conduct and bizarre explanations is that he knew he had hit a person and that he started to drink when he got home to camouflage the fact that he had been drinking before the accident."
Kehler was not charged with impaired driving causing death, as both Crown and defence lawyers agreed even a sober driver would not have been able to avoid hitting Sinclair.
Court heard at trial Kehler and his wife had spent the evening with friends at the Moosehorn Hotel bar, celebrating his wife’s birthday, before leaving for home around 2:30 a.m.
Around that same time, Sinclair and his girlfriend Sonya Sumner were driving south on Highway 6 when Sumner, who was behind the wheel, swerved to miss hitting an animal, lost control of the vehicle and rolled into the ditch.
“There is no dispute that Mr. Kehler could not have avoided hitting Mr. Sinclair. By all accounts, it was very dark and Mr. Sinclair was wearing dark clothing.” — Justice Shawn Greenberg
Sumner, who broke her ankle, had dragged herself to the road to flag down a vehicle when about 25 minutes later Sinclair, who had been knocked unconscious, walked onto the highway, appearing dazed and waving his arms. He was immediately struck by a truck which did not stop.
Sumner was able to flag down another driver, who called 911 at 3:20 a.m.
"There is no dispute that Mr. Kehler could not have avoided hitting Mr. Sinclair," Greenberg said. "By all accounts, it was very dark and Mr. Sinclair was wearing dark clothing."
Kehler didn’t call 911 until 4:15 a.m., a full hour after he and his wife had arrived home.
Kehler, who claimed he was the designated driver and did not drink at the bar that night, told court he opened a new bottle of whisky when they got home and started to drink. He said he went outside an hour later to check the damage on his truck and only then realized he may have hit a person, not an animal, and called 911.
Kehler said he had four drinks — equivalent to 17.6 ounces, the amount missing from the whisky bottle — before police arrived, seized the liquor and arrested him for impaired driving.
Breath samples Kehler provided between 8:10 a.m. and 8:30 a.m. suggested Kehler would have had a blood-alcohol reading of between .211 and .263 if the accident occurred at 3:25 a.m., the RCMP expert testified.
That estimate, however, was based on a precise estimate of when the collision occurred, which was not clear, and an assumption that Kehler did not drink after arriving home, Greenberg said.
Asked to adjust her estimate on the assumption Kehler drank something when he got home, the RCMP expert testified he would have had to consume less than 11.3 ounces of alcohol to be legally impaired while driving.
"To convict Mr. Kehler, there must be sufficient evidence to support that assumption," Greenberg said. "But the only evidence as to what, if anything, Mr. Kehler drank came from Mr. Kehler.
"The Crown argues that I should not believe Mr. Kehler drank as much as he said he did," she said. "But even if he exaggerated how much he drank, there is no evidence that Mr. Kehler did not or could not have consumed 11.3 ounces of alcohol and nothing that would allow me to draw that inference."
Kehler will be sentenced for failing to stop at the scene of an accident at a later date.
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