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This article was published 6/7/2010 (3739 days ago), so information in it may no longer be current.

BRANDON -- A Brandon man has been acquitted of impaired driving on his snow machine because an RCMP constable went too far when he pulled his gun on the accused, a provincial court judge has ruled.

Judge John Combs acquitted Joel Donald Kempthorne, 49, of impaired driving and driving with his blood alcohol level over the legal limit, because the arresting officer's actions were "excessive."

The judge said the nervous constable could have waited for backup to arrive, instead of trying to arrest Kempthorne and his buddy by himself.

"His doing so with his firearm pointed at them was, in my view, unnecessary and potentially very dangerous," Combs stated in a written decision delivered this week.

Kempthorne and his friend were arrested in the early morning of Jan. 6, 2008.

During his trial on Dec. 16, 2009 and March 24 of this year, Kempthorne testified that he and a friend went on a snowmobile ride.

He had a beer before leaving Brandon, then four drinks during two hours at a Carberry bar.

Kempthorne and his buddy then rode away from the bar, stopping just outside Carberry, where they had two beers each.

Kempthorne also swigged from a bottle of schnapps after his snowmobile got stuck at that spot.

It was then that he and his friend were arrested. Kempthorne testified that a pistol was put to his neck as he lay on the ground.

The arresting officer told court he pulled out his gun because he was concerned for his safety. He believed he was dealing with two riders who had "fled" after the officer spotted them in Carberry.

Combs ruled that the officer didn't have reasonable grounds to conclude Kempthorne was one of the elusive snowmobile riders.

At the time, Kempthorne was told he was being arrested after showing signs of impairment and because he was found with a quarter-full bottle of schnapps and a pair of beers.

Breathalyzer tests later placed his blood-alcohol level at more than double the legal limit.

Combs agreed Crown attorney Garry Rainnie proved Kempthorne's blood-alcohol level was over the legal limit when he rode his machine.

However, the evidence of impairment and the breathalyzer results can't be accepted, Combs ruled.

The gunpoint arrest was arbitrary and unnecessary and breached Kempthorne's rights under the Charter of Rights and Freedoms, the judge wrote.

"The public would be concerned if evidence was admitted which was obtained in the manner of this case."

--Brandon Sun