VANCOUVER (NEWS1130) – The woman convicted in the death of Alexa Middelaer is not getting a new trial.  The four-year-old was hit and killed while feeding a horse on the side of 64th Avenue in Ladner in May of 2008.  Alexa’s aunt was hurt also, suffering critical injuries.

Carol Berner was convicted two summers ago of dangerous driving causing death, impaired driving causing death, dangerous driving causing bodily harm, and impaired driving causing bodily harm.  The following November, she was sentenced to two and a half years in prison.

“This is a huge sense of relief for our family,” says Laurel Middelaer, Alexa’s mother, reacting to today’s decision by BC Court of Appeal.  “We had a lot of angst leading up to this moment. We did not know one way or the other and we were prepaired for either outcome.”

Laurel tells us the family has been trying to get past the tragedy. “We’ve trudged through a lot of feelings through those four and a half years and we’ve really learned — and I’m very proud to say — it’s not about Ms. Berner. To us, we’ve elevated beyond that. This is an issue of impaired driving.”

Berner appealed her conviction on five grounds: the trial judge erred in finding that Ms. Berner was not arbitrarily detained at the scene of the accident and should have excluded statements she made to police at the crash site; the judge erred by allowing breathalyser evidence because police didn’t have grounds to administer the test in the first place; the judge erred by allowing expert testimony from a witness who wasn’t available to testify at the trial; the judge erred by not staying the trial despite the destruction of evidence before trial; and the judge erred by reaching an unreasonable verdict on the impaired driving counts in the abscence of supporting evidence.

Berner tried to blame the accident on mechanical problems, theorizing that her 2000 Oldsmobile Intrigue had braking or steering problems.  The car was destroyed before the trial began, and Berner’s defence council complained about not being able to have an independent inspection of the vehicle.  

Berner signed a salvage release on May 28, 11 days after the deadly accident, giving title of the Oldsmobile to ICBC. Police sent a letter to Berner two days after the release was signed advising her to have the car inspected by a mechanic or engineer, but she apparently did not respond or take action.

Berner was arrested in December of 2008 following a two-month undercover sting known as Operation Angel.  Officers posing as a couple befriended Berner and she admitted to them that she had consumed three glasses of wine before the accident, not two, and that she may have stepped on the gas pedal instead of the brake.

Carol-Ann Berner has also appealed her 30-month prison sentence and five-year driving prohibition.  She is in custody now pending a bail hearing.