ST. ALBANS —The case against Patrick Prue, 60, of Franklin, who police allege caused the death of an Enosburg teenager and serious injury to a second teen, could be in trouble over an investigator’s decision not to order a blood test of the other driver involved in the fatal crash.
Brandon Gleason, 17, died in the accident and David Paron, 17, a fellow Enosburg Falls High School student and a passenger in the same car, was seriously injured.
According to court filings, Prue had a blood alcohol content of .122 percent an hour and a half after the April 26, 2013 accident. The legal limit to operate a motor vehicle is .08 percent.
Newton told investigators there was a vehicle coming toward him in his lane and he swerved to avoid it. The vehicle then followed him, moving back to its proper lane where the collision occurred. Capt. Jay Sweeny of the Franklin County Sheriff’s Office has done an accident reconstruction supporting Newton’s version of events. The defense says it has an accident reconstruction that differs from Sweeny’s.
Prue’s defense attorneys, Frank Twarog and Nick Hadden, have filed pre-trial motions arguing law enforcement failed to gather required evidence. Under Vermont statute, when an automobile accident results in a fatality or serious injury police are to test for impairment of any driver involved in the crash who they have reason to suspect might be under the influence of alcohol or drugs.
Prue was tested. David Newton, then 17, of Richford, who drove the car in which Gleason and Paron were passengers was not.
Testimony in court yesterday explored why officers failed to secure a blood test of Newton despite the fact that marijuana was found in his car and he had admitted to Vermont State Trooper Ashley Farmer that he had taken a single hit of marijuana four hours before the accident.
Previously, Twarog told the court the failure to test Newton was equivalent to the state losing potentially exculpatory evidence. As a consequence, the charges against Prue of driving under the influence with a fatality resulting and driving under the influence with a serious bodily injury resulting should be dropped and Prue should be charged only with driving under the influence, Twarog argued.
Trooper Farmer was the first witness to take the stand. Farmer said she was dispatched to Northwestern Medical Center (NMC) the night of the accident in response to a request from the Franklin County Sheriff’s Office (FCSO).
Upon arriving at NMC, she spoke with sheriff’s deputy Corey Griswold and was told that marijuana had been found at the scene and there were questions about whether the driver, Newton, was impaired.
Farmer said she spoke with Newton and her impression was that he was not impaired. His ability to speak and understand what was said to him was normal. His eyes were watery and bloodshot, said Farmer. Because the windshield had been shattered during the crash, dust from the glass had likely gotten into his eyes, she explained.
“He was very clear. He responded right away… At the time, I believed he was not under the influence,” Farmer testified.
She then spoke with Griswold again and decided to continue with a full drug recognition evaluation (DRE) “because of the seriousness of the crash,” Farmer said.
Typically, she would have an in-depth conversation with the officer who requested the DRE to get his or her observations of the operator, Farmer said, but that was not possible in this case. Griswold had not interacted with Newton at the scene.
Farmer described in depth the tests involved in the DRE, including taking a pulse and blood pressure, questions asked, examination of eyes for dilation or inability to track, tremors, ability to multi-task, and tests of balance.
Newton did have some indicators of marijuana use such as watery eyes with dilated pupils, a small sway when standing on one foot, and elevated taste buds. He also admitted to Farmer that he had had a “single hit” of marijuana at 7 p.m., roughly four hours before the accident and about 6.5 hours before the DRE, which began at 1:30 a.m.
Farmer specifically testified that she had determined Newton was not impaired. She told Griswold of her finding, but also told him that Newton had shown indicators of marijuana use and had admitted to smoking marijuana earlier in the day.
Twarog asked her if she had a basis to request a blood sample from Newton in her role as a drug recognition officer, Farmer said she did not because she had found he was not impaired.
Asked if she would have requested a blood test if she had been in charge of the investigation, Farmer said “yes.”
Deputy Corey Griswold testified that he was instructed by Cpl. Chad Miles to go to the NMC and to ask that a drug recognition officer (in this case Farmer) evaluate Newton.
Griswold said he was advised by Farmer that Newton was not under the influence after the evaluation. When asked about a blood test by deputy state’s attorney Heather Brochu, he said, “She would have recommended to me and I would have requested it.”
He had no reason to believe a blood test should be requested, Griswold said.
Griswold testified he did not speak with Newton.
Asked by Twarog about his conversation with Farmer, Griswold said, “Specifically, I recall she advised he was not under the influence of drugs or alcohol.”
Twarog asked if Griswold recalled speaking with Farmer about Newton’s use of marijuana. Griswold answered, “Not that I can recall right now.”
Asked if he was aware there was serious injury, Griswold said, “Yes.” He was also aware of Gleason’s death and that Newton had been the driver.
Griswold said the decision about whether to draw blood had been his. “Why you and not Cpl. Miles?” Twarog asked.
“I was there, sir,” Griswold replied.
The deputy reported Farmer’s conclusion that Newton was not impaired to Miles, and the two did not discuss whether to draw blood, Griswold testified.
Twarog asked Griswold why he did not request a blood test. “Because I was advised he was not under the influence of drugs or alcohol,” Griswold answered.
Twarog read him the portion of the statute regarding the taking of blood samples in accidents involving death or serious bodily injury and asked Griswold if he was familiar with the statute, to which Griswold replied, “Yes, sir.”
Griswold stated he had no reason to believe there was any amount of drugs or alcohol in Newton’s system and that he did not recall Farmer telling him Newton had admitted to smoking pot earlier in the day. He became aware of the admission, “only after I read her report,” Griswold stated.
Asked why he had been instructed to request a drug evaluation of Newton, Griswold said, “I don’t know, sir.” Griswold said he had not known at the time that marijuana had been found in Newton’s car. However, Farmer testified he had told her marijuana evidence had been found at the scene.
Brochu has argued that even if blood had been drawn, it would not be proof that Newton was impaired, since there is no legal limit for marijuana and Farmer found no evidence of impairment. In addition, Brochu has argued Newton interacted with several member of law enforcement and medical personnel none of whom concluded he was impaired.
Both sides will have 24 days in which to file additional legal memos, following which Judge Alison Arms will rule on Twarog’s motion.