Linda O’Leary recorded ‘alert’ on breathalyzer; told officer she’d had alcohol only after deadly boat crash

Linda O'Leary recorded an alert" on an alcohol breathalyzer test almost two hours after her boat was involved in a fatal collision on Lake Joseph in Muskoka.

But O'Leary told the police officer who administered the handheld screening device test that she had only consumed one vodka and water drink after her boat crashed into a darkened vessel around 11:30 p.m. on Aug. 24, 2019, killing two.

O'Leary used her thumb and index finger to estimate the drink was about three to four inches and that she had consumed it in its entirety, OPP Const. Michelle Ingham testified Monday as O'Leary's trial resumed in Parry Sound, Ont.

She told me that was the only alcoholic beverage she consumed and it was in fact after the collision," the officer told court. O'Leary has pleaded not guilty to the non-criminal charge of careless operation of a vessel under the Canada Shipping Act.

She is the wife of Kevin O'Leary, a business tycoon and TV personality. He was also onboard the couple's power boat along with another passenger.

Ingham testified Monday that she and her partner arrived at the O'Leary cottage about an hour after the crash that killed two occupants of the other boat that had stopped so passengers could stargaze. A key issue is whether that boat had its navigation lights turned off at the time.

Gary Poltash, 64, from Florida, died at the scene, while Suzanna Brito, 48, from Uxbridge, Ont., died a few days later.

Ingham described finding Linda O'Leary in a bedroom on the second storey of a large boathouse owned by the couple. She was propped up on a pillow with her leg and her swollen foot peeking out beneath a blanket.

One of the first things she said was she was the one driving the boat and she felt she had done nothing wrong," Ingham testified. O'Leary added that her boat had struck another vessel that didn't have any lights on and that she didn't see it, the officer told court.

O'Leary said her boat's occupants shouted to see if everyone was okay in the other boat but that they heard no response before it left the scene, Ingham said.

Ingham said O'Leary told her they'd been at a friend's cottage that evening but she refused to provide any contact information.

After her initial exchange, O'Leary told Ingham she felt she was in trouble and needed to speak to a lawyer. She also said she had not consumed alcohol, and felt as though she had not done anything wrong."

Ingham told court O'Leary seemed upset and anxious" so she left her alone to collect her thoughts" while she called a senior officer.

When Ingham re-entered the bedroom at 1:12 a.m. and stood near the bed, Ingham said O'Leary's eyes appeared glassy and watery and her pupils dilated, and that she could smell a fairly strong odour of alcohol."

She, in turn, told me my pupils appeared dilated to her," Ingham told court, explaining she felt O'Leary was trying to take her attention away from her and putting it back on me."

Ingham said she told O'Leary she suspected she had been operating the boat under the influence of alcohol and that she denied that a second time. However, Ingham corrected herself to say O'Leary told her she had consumed a vodka and water after the collision, likely between 12:30 and 1 a.m.

Ingham testified when she told O'Leary she planned to administer a breath test and asked if she understood.

She didn't answer my question back. She, in turn, asked me... what would happen if she did not provide a sample." Ingham said she explained O'Leary could face a Criminal Code charge of refusing to comply a breath sample, which includes a court date, fingerprint date and a 90-day driver's licence suspension.

Mrs. O'Leary seemed shocked by my response... she didn't believe that it worked that way and that I couldn't do that."

O'Leary seemed nervous and hesitant to provide sample," but after asking repeatedly if she had to supply a breath sample, she co-operated.

After demonstrating how the device works, Ingham administered the device at 1:25 a.m. It registered in the alert range," which is when somebody has a blood alcohol concentration of between 50 milligrams in 100 millilitres of blood to 99 milligrams per 100 millilitres of blood, she told court.

I showed the device to her, the word alert was written across the screen, and there was a solid red light on the top of the device." The constable explained to O'Leary her driver's licence would be suspended for three days.

I could tell that she was upset by the news."

Ingham said she then asked O'Leary if she knew how much vodka was in the drink.

She had said she wasn't sure of the ounces of vodka or the quantity because when she returned to the boathouse after the collision the beverage was handed to her by somebody."

Nor was she sure who that was, except that it wasn't her husband or the female passenger. Court has heard the couple's son, Trevor O'Leary, and his friends were at the cottage having a bonfire the night of the crash.

During cross-examination, defence lawyer Brian Greenspan asked Ingham if she knew that before her arrival, paramedics had examined O'Leary and made no observations of dilated pupils. She said she was not aware of that fact.

The officer agreed with Greenspan that O'Leary was not told about the severity of the crash and that her son had called 911 as soon as the boat arrived back at the cottage.

Betsy Powell is a Toronto-based reporter covering crime and courts for the Star. Follow her on Twitter: @powellbetsy