The judge held a glass of beer in his hand on the bench.
“This is a judicial first here today,” Justice Wayne Dymond said, drawing laughter from the handful of people in the courtroom at Newfoundland Supreme Court in St. John’s.
He didn’t drink it. Instead, he sniffed it.
It had just been poured from a bottle of O’Doul’s non-alcoholic beer by defence lawyer Michelle Elliott.
“It has a distinct ale smell,” Dymond said.
“There’s a smell of alcohol coming from the glass and the bottle.”
Elliott’s unorthodox request was to demonstrate such a scent could easily be mistaken for the smell of alcohol.
Elliott was making the point Thursday in the trial of 39-year-old Patrick Charles O’Grady.
He’s charged with two counts each of impaired driving causing bodily harm, failing the breathalyzer and dangerous driving causing bodily harm.
The Portugal Cove man is accused of driving drunk with his three children in the vehicle.
Around 2 p.m. on Aug. 1, 2010, O’Grady was behind the wheel of his older-style Honda CRV, driving on Portugal Cove Road in Portugal Cove, when he lost control and swerved off the road while making a turn on the winding road.
The car slammed into a pillar on the side of the road and spun back into a residential driveway before coming to a sudden stop.
The car, which was a write-off, was later crushed by the company that removed it from the site.
O’Grady’s nine-year-old daughter, and his two sons, ages 11 and 12, were shaken by the incident.
The girl was visibly upset, crying loudly. She suffered cuts and bruises, along with a neck injury, while one of the boys was also cut and bruised. He had injured his chest from the seatbelt when it tightened on impact. The other boy was relatively uninjured.
O’Grady said he then moved the car and parked it a short distance down the road.
Two people who saw what happened stopped to offer assistance. They asked if they should call an ambulance, but O’Grady said there was no need.
He opted to leave the car, while he and his children hitched a ride back to his house with the woman.
It was less than a five-minute drive, but the woman testified earlier in the trial that she smelled alcohol from O’Grady’s breath.
However, Elliott pointed out that the woman could have mistaken the odor for that of the three non-alcoholic beers O’Grady said he consumed before the crash.
When the judge sniffed a sample of the beverage in the glass, Crown prosecutor Jason House immediately objected, noting that the smell would obviously be much stronger in the glass after having just been poured.
The judge noted the distinction.
Testifying in his own defence, O’Grady said that he believes the crash was caused by a faulty tire, which he said had been leaking air for the past few days.
After the incident, he said he had asked his kids at least at half a dozen times were they OK.
“(My daughter) was crying, but said yes, she was OK and that she just wanted to go home …,” O’Grady said. “They were all shocked, but weren’t saying anything really.”
He said he also checked the kids for any marks on their bodies, but didn’t see anything serious.
It was at that point, he said, he became upset.
“From there, I just starting to lose it,” he said. “I was stressed out, just really overcome.”
The woman had testified that during the drive to their home, one of O’Grady’s sons complained of a sore chest.
But O’Grady disputes that.
“He never said nothing. I would’ve suggested to call an ambulance.”
When they arrived home, he said he tried to call the children’s mother, his ex-wife, but couldn’t reach her. He said he also couldn’t get hold of his parents.
He said the children watched TV while he decided to have a beer, this time the alcoholic kind. He said he had another shortly after that and another one after that.
About an hour later, he said, five police cars and a fire truck showed up at his door. O’Grady went outside to see them.
He said a female police officer who approached him asked if he was drinking today. He said no.
“I thought she meant did I have any earlier today, before the accident,” O’Grady said.
He said the officer then asked why there was a smell of alcohol on his breath.
“I said because I was having a beer.”
When Elliott asked why he didn’t tell the officer about the three alcoholic beers he had when he got home, O’Grady replied, “She didn’t ask how many.”
The officer requested he undergo a breathalyzer test and O’Grady complied.
Twice, he failed.
He was taken to RNC headquarters and formally charged.
However, O’Grady insisted he was not impaired, since he had only consumed non-alcoholic beers, which he considered to be like Pepsi.
“If I had been drinking and driving, we wouldn’t be here today,” O’Grady said. “I would’ve just taken my punishment and go on.
“I’m against drinking and driving.”
In cross-examination, House asked O’Grady why he didn’t insist on having the car inspected after the crash, before it was destroyed, if he suspected the crash was caused by a faulty tire.
“I figured it was already done by the police …,” he said, “to find out what caused the accident.”
The children’s mother was in the courtroom for the trial, but turned down requests for an interview, fearing the publicity would upset her children.
Lawyers are expected to present their closing arguments today.