Jul 28 2010
Driver convicted in Alexa Middelaer's death
A gaunt and haggard-looking Carol Berner sat motionless in her seat Tuesday morning as Surrey Provincial Court Judge Peder Gulbransen declared her guilty as charged in the May 2008 death of four-year-old Alexa Middelaer.
Gulbransen convicted Berner on two counts of dangerous driving causing death and bodily harm, and two counts of impaired driving causing death and bodily harm.
Gulbransen said evidence presented during the trial shows Berner was driving well over the speed limit at the time of the crash and while her blood-alcohol level may not have been over the legal limit, she was nonetheless impaired.
“There is no other rational conclusion,” Gulbransen said.
He said tests prove Berner was doing 91 km/h in a 50 km/h zone in a residential area when she hit some speed bumps, lost control and crashed into Alexa and her aunt Daphne Johanson, who were standing at the side of a Ladner road to feed a horse.
Alexa, who attended preschool in Crescent Beach, did not survive.
Her aunt required 13 hours of surgery for multiple fractures and a closed-head injury. Alexa’s grandparents’ vehicle was also hit, but they escaped serious injury.
“Travelling at this speed is not a minor lapse of attention,” Gulbransen noted. “She (Berner) drove over them (the speed bumps) as if they were not there.”
He dismissed as “pure conjecture” defence suggestions Berner’s Oldsmobile might have suffered a mechanical failure as a result of a flaw in the design of the steering column that resulted in a nation-wide recall of that make and model of car.
Tests on the vehicle and skid marks at the scene show there was no failure of steering, Gulbransen said.
He added Berner’s failure to slow down on a street that she was familiar with supports the prosecution’s claim that she was impaired.
Berner failed a roadside blood-alcohol test, but passed when she was later tested again at Delta Police Department (DPD) headquarters.
Delta Police conducted an undercover investigation, with officers posing as potential new friends to get her to discuss the crash while a concealed video camera recorded her saying she was drinking wine before the crash.
Gulbransen said a person does not need to be over the legal limit to be convicted of driving while impaired.
Alexa’s parents, Michael and Laurel Middelaer, expressed relief following the conviction.
Michael said he felt a “sense of validation” at the ruling.
“It was a great day for British Columbia,” he said, “because I think as a result of this decision, what happened to our family will probably happen less often.”
Laurel, who is a principal at Southridge School, called the verdict a victory for “common sense.”
“I feel as a mother that my little girl was honoured today,” she said. “... I’m very proud as Alexa’s mom that justice was served today.”
Johanson declined to be interviewed.
Berner is to be sentenced on Nov. 8.
Her lawyer, David Tarnow, said he will argue against jail time.
“She has no criminal record, she barely has any tickets,” Tarnow said.
“Ms. Berner is quite upset by the outcome,” he told reporters.
Berner never testified during her trial and never spoke to reporters outside court.
“She always has expressed remorse at what happened,” Tarnow said.
An appeal is possible, he said, but no decision will made until after the sentence is imposed.
“There are several good, appealable grounds,” Tarnow said.
Crown prosecutor Winston Sayson arranged a court-ordered psychological assessment before Berner is sentenced, to examine her claim that she suffers from an anxiety disorder that may have contributed to the crash.
“Today’s not a cause for celebration or happiness,” Sayson told reporters.
“Nothing we have done has brought Alexa back to her family.”
DPD spokesperson Sgt. Sharlene Brooks, who attended court for the verdict, said undercover police are not usually used in impaired-driving cases, but given the magnitude of the tragedy, it was appropriate.
Brooks praised the family for fighting against drinking and driving.
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