THUNDER BAY -- A man accused in a fatal hit-and-run case has been found guilty of fleeing the scene, but not guilty of impaired driving.
Christian Hernandez was facing charges of impaired operation of a motor vehicle, operation of a motor vehicle with a blood alcohol level of more than 80 milligrams and failure to remain at the scene in the December 2010 collision that led to the death of 45-year-old Richard Carmichael.
On Thursday at the Thunder Bay Courthouse, Justice Joyce Pelletier acquited Hernandez on the two impaired charges, but found him guilty for leaving the scene of the collision.
The Agreed Statement of Facts states a witness called police around 3:10 a.m. Dec. 19, 2010 and said there was a body laying in the road on High Street near the Van Norman Street intersection.
Emergency crews found a man laying on his stomach and a pool of blood underneath him. Paramedics took him to the Thunder Bay Regional Health Sciences Centre and arrived at 3:55 a.m. Carmichael was pronounced dead at 3:58 a.m.
According to the autopsy report, Carmichael died of bilateral pneumothorax from multiple injuries caused by blunt force trauma.
Carmichael had been wearing all dark clothing and a friend testified they too had drinks at the Shoreline Hotel that evening.
Pelletier ruled that the breath samples taken from Hernandez at 4:58 a.m. Dec. 19, 2010 at the Thunder Bay Police Station couldn't be proven beyond a reasonable doubt were taken within two hours of the collision.
Although the first 911 call came in at 3:10 a.m., that person was not an eye witness to the collision and the incident could have happened much earlier.
The first breathalyzer showed Hernandez had 140 milligrams of alcohol per 100 milligrams of blood in his system; at 5:19 a.m., he had 120 milligrams of alcohol per 100 milligrams of blood.
The judge also said she couldn't conclude beyond a reasonable doubt that Hernandez, who was 25 at the time of the incident, had been driving impaired at the time of the collision.
The evidence of alcohol impairment was too weak, she said.
One city police officer had testified that Hernandez had a lazy expression and droopy eyes and he detected an odor of alcohol before arresting Hernandez.
Pelletier said that by her observations throughout the trial, Hernandez often had a lazy facial expression and droopy eyes and the officer's observations were just an opinion.
The judge also said nothing stood out as signs of physical impairment in any of police videos from the night of the collision.
There was also no evidence of swerving and speeding by Hernandez or that he ran a red light.
Testimony from another city police officer that investigated the scene of the collision stated the driver of the vehicle would have been unable to make any adjustments or brake to avoid Carmichael.
The judge said she wondered if Carmichael had sadly walked into the imminent path of Hernandez and she could not conclude Hernandez's judgement was impaired by alcohol.
On the failure to remain charge, Hernandez had testified during the trial he thought he had a deer, not a person.
But the judge said she believes Hernandez was willfully blind to the fact he struck a person; he was deliberately ignorant and chose not to stop.
With a gaping hole in the shattered windshield, the judge said she doesn't know how Hernandez could mistake the victim for a deer.
Sentencing is scheduled for Nov.3; Crown attorney Trevor Jukes said he will be seeking custody in the sentence.