Driver was drunk but not responsible for death of man beaten and left on road, lawyer argues

Desmond Spicer admits he was legally too drunk to drive when he ran over Dustin McKay as he lay unconscious on a Winnipeg roadway, but he should not be held responsible for killing him, his lawyer argued Wednesday.

McKay, 22, was assaulted during a late night altercation with a motorist in January 2015 and was left unconscious on the road near the intersection of Isabel Street and Pacific Avenue. Moments later, Spicer drove over him with his minivan.

Spicer, 53, is now on trial, charged with impaired driving causing death and driving over .08 causing death.

"His manner of driving was perfectly fine," defence lawyer Ted Mariash told Justice Rick Saull in a closing argument Wednesday. "He was not speeding, he was not weaving. This could literally happen to anyone, sober or not."

• Winnipeg man argues he wasn't responsible for death of 22-year-old beaten and left unconscious on road

Billy Joe Couture, the man who assaulted McKay, pleaded guilty to manslaughter in 2015 and was sentenced to four and a half years in prison.

According to an agreed statement of facts provided to court at Couture's sentencing, McKay was crossing Isabel Street at Pacific Avenue at 11:20 p.m. when he was nearly struck by a van.

McKay banged on the van with his fist before approaching the passenger-side door, an act Couture, seated in the front passenger seat, interpreted as "a sign of aggression."

Couture assaulted McKay and left him on the roadway.

Alcohol contributed to 'avoidable death': Crown

Spicer testified he had been nearing the scene when his attention was diverted to a car that had cut in front of him. He veered left to avoid a collision and felt the car go over a "bump."

"There are very different things that can draw our attention from the road," Mariash said. "If any other person had not been looking at the road for a fraction of a second the inevitable conclusion is they would have had contact with Mr. McKay."

• 2 charged in Dustin McKay death, Winnipeg's first homicide of 2015

Police saw Spicer run over McKay and pulled him over a short distance away. Court heard Spicer provided a breath sample later that night. His blood-alcohol level was estimated to be at least .128 at the time of the collision and as high as .156 nearly twice the legal limit of.08.

"The only logical conclusion is that everybody's ability to operate a vehicle would be significantly impaired at these levels," argued Crown attorney Mike Himmelman.

A police traffic reconstructionist testified there were no signs Spicer slowed down or applied the brakes before running over McKay.

"He did absolutely nothing, based on the evidence which makes his impairment a contributing cause to an otherwise avoidable death," Himmelman said.

Saull reserved his decision.