BLOOD STAYS IN, SAYS JUDGE

Samples To Be Used In Impaired Driving Case

The blood of a man accused of being stoned when he crashed into an SUV
- - killing two people and injuring two others - was admitted as
evidence at his trial yesterday.

James McIlwrick, 36, had launched a legal challenge to try to have two
blood samples taken by police excluded from evidence because of
allegedly improper search warrants, however a judge ruled the warrants
were proper.

'Fishing Expedition'

Defence lawyer Bill Tatarchuk had argued the police did not have
enough actual evidence of alleged impairment to seek a warrant to
obtain blood and were simply on a "fishing expedition" looking to
confirm their suspicions.

But, Court of Queen's Bench Justice June Ross said she was satisfied
the officer believed McIlwrick was impaired based on evidence he had
and was simply wanting blood samples to determine the "level" of impairment.

That evidence included an eyewitness to the deadly crash noting "a
very strong smell of smoked cannabis" coming from McIlwrick's pickup
and McIlwrick admitting to the officer he had smoked two joints on his
way to work.

As well, the officer had overheard McIlwrick say he had also taken a
combination of prescription drugs.

Ross also ruled the officer was aware that there were no weather or
road conditions involved that could have led to McIlwrick being in the
opposite lane at the time of the 7:30 a.m. crash, nor evidence of him
swerving or braking.

The Edmonton man is charged with two counts of impaired driving
causing death and two counts of impaired driving causing bodily harm.

According to agreed facts, there was a head-on collision between
McIlwrick's pickup and an SUV carrying four co-workers after McIlwrick
crossed the centre line into oncoming traffic on Highway 21 on Nov.
25, 2003.

Two Dead

Driver Tammy Engelking, 27, and Henry Huanxin Yao, 40, both of
Sherwood Park, died as a result of the collision while passengers Kork
Sin Liew suffered a broken sternum and Massoud Teymouri suffered four
broken ribs.

McIlwrick was convicted of the four charges in April 2006 and
sentenced to 4 1/2 years in prison three months later.

However, he successfully appealed his conviction and a retrial was
ordered. The case is set for four days.