The appellant's vehicle struch a light standard and perhaps a guardrail ending up in a muddy ditch on Highway 410. The car was wrecked-it was immobilized and unable to be operated. The appellant testifed that shortly after 1:30 am in attempting to execute a lane chage, he lost control of his vehicle in a manoeuvre designed to aviod making contact whith a vehicle seeking to enter the same lane. No independent witness saw the accident involving the appellant's vehicle. Some of the occupants of a vehicle that stopped at the accidnet scene testifed at trial. These individuals, uncertain of the time of the morning observed a car in the ditch with a cloud of smoke abive it. A cellphone was employed to make a 911 reprot. The appellant was at the side of the roadway exhibiting classic signs of imparment. The appellant was observed speaking to a tow-truck operator. Constable Skleryk recieved a 2:57 dispatch to the scene arriving at 3:01 am. The appellant admittied being the driver. He was unsteady on his feet and showing physical signs of alochol impairment. He related to the investigator "I was driving along and I swayed to avoid anotehr vehicle". The appellant was arrested at the scene and transported to a police facility for the administration of a breathalyzer test. The readings were 140mg. at 4:04 and 4:26 am. The appellant testifed that he consumed 3 bottles of beer between 11 and 1 am. When he set out for home he felt fine and had no difficluty driving untill the accident. 2nd car drove off without stopping. The allpellant testified that he was into the ditch at 1:40 am and spent the nest 45 - 60 mins. at the roadside waiting and making efforts to summon assistance. Mr. Dhillon testified that he had no thought of driving the vehicle. He recalled waiting "a long time" before the police arrived
The appellant's vehicle in these circumstances, held no potential to create some danger. Although the appellant had apparently exercised care or control in respect of the vehicle through its operation, that was not the trial theory of the prosecution or was there convincing evidence that the breath samples were taken within two hours of such care and control. On the evidentiary recond in this case, the appeal must be allowed, the conviction set aside and an acquittal entered.