Kelowna

A BC Supreme Court justice will hand down a decision next month in the trial of a Kelowna man accused of impaired driving causing death and injury.

Cody Richard Wengenmayr, alleged to have been impaired when he drove into and killed six-year-old Trey Alphonse and injured his mother, Iris, Aug. 30, 2010 in Kelowna, will learn the fate of his trial Nov 30, when a justice will deliver a verdict.

Defence counsel made closing submissions in BC Supreme Court Friday.

“She was acting recklessly...,” defence lawyer David Jones told the court of Iris’ decision to jay-walk while pulling her son behind her. "She caused this accident, not Mr. Wengenmayr."

The Alphonses were estimated to be about 70 metres from the nearest crosswalk.

Defence argued that lighting was also less than optimal at the time of the collision, which occurred in the westbound HOV lane of Harvey Avenue near Orchard Park Shopping Centre just after 10 p.m., and noted that other witnesses testified seeing mere “shadows” and couldn’t identify the flying, then rolling, object as Trey until they approached the scene.

“No driver in Mr. Wengenmayr’s position could have avoided them.”

Defence reaffirmed to the court the testimony of an earlier witness who testified he did not smell any alcohol on Wengenmayr’s breath immediately following the accident. The defence maintains that Wengenmayr last had a drink at about 7:30 p.m. and was not impaired at that time, nor at the time of the accident.

Defence is relying on the estimation of an accident reconstructive expert that Wengenmayr was only travelling 58-62 km/h as he struck Trey and Iris.

Defence also argued that the testimony of Scott Robinson, alleged to have been travelling behind Wengenmayr just before and at the time of the accident, was biased and contradictory, especially during cross-examination. The defence says that Robinson was either parallel or very close to Wengenmayr immediately before and at the time of the accident, and at least one witness didn't recall seeing brake lights from Robinson’s SUV, let alone Wengenmayr’s Honda.

The Crown made closing arguments Wednesday.