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RCMP bungling sinks case against top lawyer

When you arrest the president of the Law Society of British Columbia for drunk driving, you had better make sure you have the evidence straight.

But when Kelowna RCMP arrested Howard Berge at an accident scene last fall, they had roadside breath analysis machines that weren't properly calibrated, and they mishandled a key piece of evidence: They drove off with an open beer can on the roof of the police cruiser.

Yesterday, Crown prosecutor Jonathan Hak threw in the towel in the case against the high-profile lawyer, withdrawing charges of driving while impaired and failing a breath analysis test after conceding that police had made several mistakes.

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Mr. Berg pleaded guilty to driving without due care and attention and was fined $1,000.

Among the errors in the case was the beer can incident.

The RCMP seized the can of beer at the scene of a single-vehicle accident near the Kelowna Golf Club, where they found Mr. Berge's red Volvo had smashed against a rock wall before crossing two traffic lanes and coming to a stop.

Court heard police testify that Mr. Berge couldn't follow a pen moved back and forth in front of his face to test his sobriety, that his words were slurred and that he had trouble walking.

According to a report in The Penticton Herald, witnesses also testified that Mr. Berge had tried to stash beer in the back of a pickup truck that stopped at the scene to help, and that he was seen swigging mouthwash after the accident.

The RCMP testified that Mr. Berge blew .14 on a breath analysis test at the police station, which is well over the .08 legal limit for driving.

But if the police evidence appeared to present a strong case against Mr. Berge, defence lawyer Grant Gray soon poked holes in it.

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The court was told that Constable Gary Senner had placed the confiscated beer can on the roof of his patrol car and then forgot about it. The beer can came back to his attention when, driving to the police station with Mr. Berge in the back, he braked at a stoplight and it bounced down onto the hood of his car.

Court also heard police didn't administer a roadside breath test at the scene because two portable units hadn't been calibrated and weren't usable.

Mr. Gray accused police of arresting Mr. Berge based on theories, not on hard evidence. He also said police had no grounds to take Mr. Berge in for a breath analysis test because they had no firm evidence at the accident scene that he was impaired.

Although Constable Senner had testified that Mr. Berge's words were slurred, other witnesses said his speech was coherent.

Yesterday, Mr. Hak agreed that the Crown's case was too weak to stand up and he withdrew charges.

A spokesman for Crown counsel in British Columbia couldn't be reached for comment yesterday.

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Mr. Berge is one of the founding partners of Berge & Company, a Kelowna law firm. He graduated from the University of British Columbia law school and was called to the B.C. bar in 1967. He has more than 30 years of experience practising in the areas of corporate, commercial and administrative law.

He moved to Kelowna from Vancouver in 1970 and was elected president of the Law Society earlier this year. He is a past president of the Kelowna Bar Association.

Mr. Berge was convicted of impaired driving in 1985 in Kelowna, at which time he was fined $450 and had his licence suspended for six months. With a report from Canadian Press

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About the Author
National correspondent

Mark Hume is a National Correspondent for The Globe and Mail, based in Vancouver, writing news and feature stories on a daily basis about his home province of British Columbia. His weekly column, which often challenges the orthodoxy on environmental issues, appears every Monday. More


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