ST. ALBANS — The fate of Patrick Prue, the man accused of causing the accident that  killed Enosburg high school student Brendan Gleason could be determined by judicial rulings on a series of motions filed by both the defense and prosecution.

Defense attorney Frank Twarog is seeking a dismissal of charges arising from the accident on April 26, 2013. Failing that, Twarog wants to include evidence of marijuana use by David Newton, the driver of the other car involved in the accident. The state is seeking to exclude that evidence on the grounds that multiple law enforcement officers and medical personnel examined Newton after the accident and none found him to be impaired. Prue, meanwhile, had a blood alcohol content of .122 percent an hour and a half after the accident.

Gleason, of Enosburg, was 17 when he died. At the time of the accident, Newton, of Richford, also was 17 years.

Prue, of Franklin, is now 60 years old, and is charged with driving under the influence, fatality resulting and driving under the influence, serious injury resulting. David Paron, another passenger in Newton’s car suffered a broken femur and pelvis in the wreck.

Newton told investigators he swerved to avoid a car in his lane while driving on Route 105 in Enosburgh. When he swerved into the opposite lane, the other car appeared to follow, also changing lanes.

The state maintains that Prue was intoxicated and drifted into the wrong lane causing Newton to swerve to avoid him. Prue then copied Newton’s movement, causing the collision.

The defense is offering an alternative explanation. Relying on Newton’s admission that he had had a single hit of marijuana four hours before and the presence of marijuana and a pipe in Newton’s car, Twarog argues that Newton may have perceived Prue’s car was in Newton’s lane when in fact it was not. Newton may have swerved into the left-hand lane to avoid a car that wasn’t there, in Twarog’s estimation.

In seeking to exclude the marijuana evidence, Deputy State’s Attorney Heather Brochu argues that a witness traveling behind Newton that night did not observe any erratic driving by Newton. Cpl. Brendan McKenney of the Franklin Sheriff’s Department, AmCare personnel and Northwestern Medical Center personnel all interacted with Newton that night and none noticed any signs of impairment, according to court documents.

After marijuana was found in Newton’s vehicle, the sheriff’s office asked for an examination by a trained drug recognition expert. Vermont State Trooper Ashley Farmer also found that Newton “was able to recognize, communicate and comprehend instructions,” according to Brochu’s filing. Farmer concluded Newton was not actively under the influence of marijuana at the time of the accident.

Given a lack of evidence that Newton was impaired at the time of the accident, Brochu argues the marijuana in the car and Newton’s admission of use should not be admitted during Prue’s trial.

The marijuana evidence would not alter the facts of the case and would be “more prejudicial than probative,” according to the prosecution. In other words, the marijuana evidence is more likely to prejudice a jury than to shed light on the facts of the case, Brochu argued.

In addition, the issue is not whether Prue’s alleged intoxication was the sole cause of the accident, but a cause, argued Brochu. The marijuana evidence would not alter the evidence of Prue’s intoxication, she maintained.

Brochu is also seeking to exclude character witnesses offered by the defense on the grounds that they are not relevant in a driving under the influence case. “We’re not saying if he’s a good or bad person,” Brochu told the judge last week.

 The defense

In response, Twarog pointed to the report by Farmer, which found evidence of  marijuana use by Newton, although she did conclude he was not impaired at the time of the accident.

He also challenged Brochu’s interpretation of the law, quoting a 2007 Vermont Supreme Court decision which found that in a case involving drunken driving with a fatality resulting the intoxicated person is criminally responsible for the course of events caused by his impaired driving “unless the act of another breaks the chain of causation of the original negligent actor.”

Twarog maintained that Newton’s actions may have broken the chain of causation, and that a jury needs to make that determination. Thus, the marijuana evidence is potentially probative and needs to be allowed, Twarog argues.

Additionally, he questions the validity of Farmer’s evaluation of Newton, pointing to a series of prior evaluations in which Farmer was wrong about the cause of the intoxication of the person she examined. In one case, Farmer concluded the examined person was under the influence of marijuana, but a toxicology report found no evidence of marijuana use.

In other cases, Farmer misidentified the drugs used by the persons she examined, according to Twarog.

Farmer also reported seeing skid marks indicating Newton had braked while in his lane the existence of which is not “supported by any physical evidence at the scene,” claimed the defense.

Twarog concluded his response to the state’s motions by pointing to “lost” evidence.

State law requires that in fatal accidents the surviving operator must be subjected to a blood test if there is any reason to believe the driver was impaired. Despite the presence of marijuana in his car and his admission of having smoked marijuana four hours earlier, no blood sample was taken from Newton.

The investigating officer from the Franklin County Sheriff’s Office did not order a toxicology test of Newton.

“Law enforcement had the obligation to obtain a blood test from David Newton because it was aware that he was a surviving motorist; a fatality and a serious bodily injury had occurred; and it had reasonable ground to believe that there was a drug in his system,” Twarog wrote. “Failure to secure David Newton’s blood was directly attributable to the police… there was a high degree of negligence on the part of the government.”

“The lack of a blood test in this case prevents defendant from presenting evidence to a jury that David Newton’s crossing into this lane of travel was the result of impairment from marijuana use,” Twarog concluded.

The appropriate remedy for the government’s negligence is, Twarog argues, dismissal of the charges against Prue.

Brochu will be filing her response to Twarog’s dismissal motion within the next week.

It is likely the court will schedule time for the judge to ask questions of attorneys before a ruling is issued on the motions.

If a trial is ordered it would be scheduled for May or June.