Sun, June 19, 2005
Being innocent always helps
But a good lawyer makes all the difference in difficult drunk driving cases, Mark Bonokoski learns
By Mark Bonokoski
So there he was last Sunday morning, reading the latest edition of the Windsor Star, when he comes across the story of a well-known bureaucrat in his city who had just walked away from an impaired driving rap.
"Another example of the 'haves' and the 'have nots,' " he writes in an e-mail, and then he attaches a download of the newspaper clipping and the story which carried the headline, "Agnew cleared of drunk driving."
It's the optics, of course, that money talks and justice balks.
True or otherwise.
He thinks of his own case, of how he will have to return to Oshawa next month to be sentenced for being in the care and control of a vehicle while impaired, of how his Toronto lawyer said he didn't stand a chance of winning and had him plead guilty, of how he will lose his licence for a year, and then of how he will lose his job.
A travelling salesman without a car? Doesn't work.
And then he thinks of Ed Agnew, so well-known in Windsor that headline writers assume that everyone knows the "Agnew" in the headline is that "Agnew."
What he doesn't think, however, is that Ed Agnew was legitimately innocent. He thinks he bought his acquittal because he had the smarts -- and the wherewithal -- to hire high-profile Windsor lawyer Patrick Ducharme.
And, in a way, he is right.
Perhaps if he, too, had retained Ducharme -- who charges an average of $10,000 to defend a drunk-driving charge -- he might not be finding himself soon out of a job and selling his home in Windsor to make up the shortfall in lost income.
Especially if his was a case worth defending.
And Ed Agnew's case, said Ducharme, was one of those.
"There are too many lawyers out there who think impaired cases aren't defendable," says Ducharme who, when not in court, writes papers and delivers lectures on how to do what others believe cannot be done.
Ed Agnew's case hit the newspapers only because he's "a bit of a celebrity" in town, says his lawyer.
According to the Windsor Star, the 71-year-old former city finance commissioner was demoted in 1990 after an expensive probe showed that taxes on his home had not been paid, that two banks were suing him over defaulted loans and that unauthorized family members were taking advantage of the city's dental plan.
But that seemed not to matter. Instead of showing him the door, the city created a new position for him -- grants commissioner -- and, during his 14 years at that post, he reportedly attracted $52 million in government grants to the city.
Last year, when he announced he was stepping down, city councillors even banded together to convince him to stay on the job.
Then he lands in court on a drunk-driving rap.
While admitting that he may have been driving poorly due to a passenger giving him directions to her home, Ed Agnew told Ontario Court Justice Bruce Thomas that he was not drunk when police in the nearby village of LaSalle pulled him over, and that his difficulty standing and walking was because his knees were in bad need of surgery.
It was an explanation, Ducharme said, which the judge ultimately accepted as the truth.
But it was Patrick Ducharme who steered the defence in that direction.
There were the videotapes of Agnew's interrogation, and the admission by the police who conducted that interrogation that Agnew exhibited "only minimal symptoms of impairment ... and no slurring of speech."
There was the toxicologist who testified that Ed Agnew could not possibly have the breathalyzer reading he had blown by drinking the amount of wine that was witnessed by fellow diners, and which he had the restaurant receipt to prove.
And that was two three-ounce glasses.
Patrick Ducharme, according to those who know, does not go to court without loading up on contingency defences.
In this case, the Crown was forced to toss the charge that Agnew exceeded the legal blood-alcohol limit because police had not administered the breath test within the two-hour time limit required by law -- something the local newspaper did not explain in its report.
"It was two hours and one minute," says Ducharme, "All which means I know how to count."
The judge never heard, therefore, that Ed Agnew's two glasses of wine ended up with a breathalyzer reading that was actually more than twice the legal limit.
"I'll acknowledge it was high," is all Ducharme would say.
But, he claims he had that covered too.
"Everyone thinks breathalyzer machines are incredibly reliable," says Ducharme. "But they're not.
"In order to be accurate, they must be calibrated at least once a year," he says. "But I've had cases of late where the last calibrations were done way back in 2000 and 2001.
"There is no way anyone can be convicted under those circumstances --
and that's no matter who they are."