Witness testifies to a range of possible blood alcohol content, based on hypothetical situations resembling previously-heard evidence
Const. Bret Henry’s blood alcohol content could have ranged from barely over the legal limit to more than three times the limit the night he’s accused of driving impaired.
That was the video link testimony of the Crown’s expert witness, Clifton Ho, during the third day of Henry’s impaired driving trial in provincial court Friday.
Henry, a Prince Albert police officer, is accused of impaired driving in an incident last March, where he was seen at three local bars between the evening of March 2 and early morning of March 3. Witnesses say he consumed as many as 12 drinks, many of them including more than one standard serving of alcohol. Henry was not pulled over that night, and the Crown is relying on eyewitness and expert witness testimony in its case.
Ho was sworn in as an expert witness after an extensive Voir Dire that discussed his credentials. Only expert witnesses can give qualified opinion evidence in court.
Ho is a forensic alcohol expert with the RCMP. He studies the effects of alcohol on the human body. While he’s testified in court before, he acknowledged this is the first time he’s been called in as an expert witness in a case where there is no physical evidence of either a breath or a blood sample.
Ho talked at length about how alcohol affects the body, and how it impairs someone under the influence who attempts to drive. He talked about how the substance serves as a central nervous system depressant, slowing down the brain, affecting mental judgement, inhibitions, vision, reaction time and fine and gross motor control.
He said things like gross motor control are needed to operate a steering wheel and pedals, which can become challenging under influence as alcohol affects the brain’s ability to observe its surroundings and make and execute a decision.
He also said alcohol decreases the ability to recover from glare and detect motion, and people driving while under the influence of alcohol can develop tunnel vision and lose the ability to determine distance.
Crown attorney Bill Burge then called on Ho to make a series of calculations on a series of hypothetical situations to determine the theoretical blood alcohol of someone. Burge presented hypothetical situations that match what various eyewitnesses have told the court on previous days of Henry’s trial, using a man of Henry’s gender and weight.
Each calculation considered a number of 30 ounce glasses of beer, either four or five, consumed between 6:51 and 10:49 p.m. Then, Ho would consider a further consumption of six or seven drinks containing two ounces of hard liquor, consumed between 11:04 p.m. ant 1:41 a.m. the next day. Some of the situations involved drinks with two ounces of 40 per cent liquor, while some involved situations where the two ounces included one with 40 per cent liquor and one with 28 per cent liquor, equivalent to the Disaronno the Original Joe’s bartender said was part of the drink he made for Henry.
Ho provided estimates of a range of maximum possible blood alcohol content (BAC) for six different scenarios. Those estimates, in total, range from 201 milligrams per 100 ml of blood (mg per cent) to 342 mg per cent.
Ho did say that those estimates represented a range of the maximum blood alcohol content, which would mean 100 per cent of the alcohol consumed gets absorbed into the blood stream. He explained that this is rare, and those blood alcohol levels can be as little as half of the maximum, but that most people fall somewhere in the middle.
That would mean Henry’s blood alcohol content could have been as low as 100 mg per 100 ml of blood. That converts to 0.1 per cent on a breathalyser test. The legal limit under the Criminal Code is 0.08 per cent, or 80 mg per 100 ml of blood. The highest maximum provided by Ho would convert to 0.342 on a breathalyser test.
Ho testified that several factors could reduce the blood alcohol content to that lower limit of half the maximum, including an individual’s body composition and the amount of water their body carries, as well as individual absorption rates and the presence of food in the stomach.
Food in the stomach could slow the absorption of alcohol by two to three hours, Ho said, as the majority of absorption happens in the small intestine, and food can block the alcohol from hitting the small intestine.
The point of food was something defence lawyer Michael Owens seized upon. He suggested to Ho that Henry’s meal, revealed to the court as a burger, some fries and chicken wings, could have taken a while to digest because of the fat content. Owens suggested that would reduce the blood alcohol content even further.
Ho disagreed. He said factors such as food are included in that low range of half the maximum BAC.
Owens also challenged Ho on some of the assumptions made in his calculations, such as the rate of alcohol dispelled. While 90 per cent of the population processes alcohol at one rate, between 10 to 20 mg per 100 ml per hour, about 10 per cent processes alcohol differently. Owens suggested to Ho that he had no way of knowing whether Henry fell within that 90 per cent or that 10 per cent.
Owens then turned to Ho’s testimony about bolus drinking. Bolus drinking is when a significant amount of alcohol is consumed in a short period of time, it isn’t immediately absorbed by the blood stream, instead, taking time.
Owens asked Ho if he had a medical definition of bolus drinking.
Ho said it was a large amount of alcohol over a short period of time.
Owens then asked Ho whether he could define large and short.
Ho could not.
Fellow police officer testifies Henry was slurring some words, squinting at phone
A fellow police officer who had drinks with Const. Henry at both the Rock and Iron and Original Joe’s the night Henry is accused of driving impaired testified that he felt the accused was too impaired to drive.
Const. Luke Torgunrud was at the police party at the Rock and Iron before leaving to join his girlfriend and Henry at Original Joe’s. When he first joined the police force in 2014, Torgunrud had worked on Henry’s shift for a few months, a fact the Crown attempted to establish in order to set a baseline for the way Henry walks, talks and behaves when sober.
On a typical day, Torgunrud told Crown attorney Bill Burge, Henry walks straight, doesn’t slur his speech and has steady balance.
According to Torgunrud, Henry was sitting at the far side of the police table for the first portion of the night before he moved closer as the group dwindled.
“I saw him consume two schooners of what I believe to be Original 16 Copper,” Torgunrud said when asked what he remembers from the Rock and Iron. At that point, the fellow police officer said, Henry did not appear to be drunk.
“He seemed to be pretty normal,” Torgunrud said. “I didn’t notice anything out of the ordinary.”
He said that ordinary state continued as the group moved to Original Joe’s. As the night progressed, Torgunrud testified, Henry consumed six or seven drinks of what appeared to be scotch. Closer to the end of the night, Torgunrud noticed a change.
He said Henry started to slur his words, and his eyes appeared red. At one point, Henry pulled out his phone and closed one eye to read it, behaviours Torgunrud had not observed in the past.
“With the amount of alcohol he consumed, I didn’t think he was able to drive home,” Torgunrud said of Henry.
The fellow officer offered Henry a ride home four times. Henry said he would find his own way home.
Defence lawyer Michael Owens suggested to Torgunrud that he didn’t know Henry that well.
“I don’t recall ever hanging out with him,” Torgunrud said. That didn’t seem to damper the conversation, which was about work and Henry’s experience on the job.
“It was a really good conversation,” Torgunrud said, “he was really good with me. It was a pretty fluid conversation.”
Owens then turned to Torgunrud’s observations about Henry. He asked how badly Henry was slurring his words.
Torgunrud indicated it was a few words over about two hours of conversation, not constant slurring.
Owens suggested it was possible Henry was merely speaking as appropriate in the setting, laid back and relaxed. Torgunrud said it was possible.
Owens then turned to the observation that Henry had red eyes. After some questioning, Torgunrud said it could be from being tired.
The question was then raised whether Henry had any balance issues. Torgunrud said there were none. He also said he couldn’t see Henry’s phone screen that night, and had no idea how big or small the text or image Henry was looking at.
Owens then suggested Torgunrud’s desire to offer Henry a ride was based on a “better safe than sorry” mentality.
“It’s better to give him a ride home if you think he’s impaired,” Henry’s fellow officer said.
With that, Owens finished with the witness. Court was adjourned early so lawyers and Judge Harradence could attend a swearing in ceremony that afternoon.
Court will reconvene on June 25 at 9 a.m. The Crown has four or five more witnesses to call to the stand.