Proving DUI could be challenge in Rutland hit and run
By Brent Curtis
STAFF WRITER | May 09,2013
In most drunken driving cases, prosecutors rely on tests provided by Breathalyzer or blood samples to show that an operator’s blood-alcohol content was over the .08 percent legal limit to drive at the time of the offense.
In harder cases, technicians at the state crime lab are called on to calculate what a person’s BAC was hours before a sample was provided. Or police point to slurring of speech, inability to walk a straight line or inability to focus as evidence that alcohol has impaired a driver’s ability to drive.
The hardest drunken driving cases to prove are those like the case against former Rutland City attorney Christopher Sullivan, according to prosecutors and defense attorneys interviewed this week.
The Vermont attorney general’s office has charged Sullivan with being drunk behind the wheel when he allegedly fled after striking and killing 71-year-old Jane Outslay on April 10.
What makes the case so challenging, three defense attorneys and one state prosecutor agreed, is the lack of any blood-alcohol test or on-scene observations of impairment from a trained observer, such as a law enforcement officer.
Sullivan did not come forward until more than 17 hours after the crash and his last drink.
“Typically, if you don’t get a driver within hours of their last drink, that’s it,” said Ben Black, a defense attorney from Brandon who specializes in drunken driving cases.
But the case involving Sullivan isn’t ordinary for a variety of reasons.
For starters, the lawyers interviewed this week said there’s his acknowledgement to police that he was the driver in the crash and his statement that he had consumed three glasses of wine and three to four 12-ounce cans of beer in the 2½ hours before the crash.
Armed with his statements, police and the Vermont Crime Lab estimated Sullivan’s BAC at the time of the crash was somewhere between .079 percent — just below the legal limit — and .147 percent.
That range incorporates a number of variables, including the amount of wine per serving he may have received at a downtown bar, his weight, tolerance levels and when his last drink may have been consumed.
But even with additional input from the bartenders who served him and from two people who saw him at a cookout after his visit to the bar — both witnesses say they only saw Sullivan drink one beer while there — defense attorneys say the BAC estimates calculated by police are flimsy evidence at best.
“They don’t have a test here, so there’s no benefit of presumption,” said defense attorney Bradley Myerson of Manchester Center. “It’s always easier to prove a number rather than rely on witness statements of whether someone is displaying signs of intoxication or not.”
St. Johnsbury defense attorney David Sleigh said if he were defending a case involving a broad estimate of his client’s blood-alcohol level he would seek to have the evidence excluded from trial.
“That’s a huge range. The standard of deviation swallows the whole spread,” Sleigh said of the estimate in Sullivan’s case. “(Breathalyzer) results can be challenged, too, but they represent a cornerstone in a case. Without a strong cornerstone, whatever you build on top of the foundation is inherently unstable.”
The prosecutor in charge of Sullivan’s case, Assistant Attorney General Cindy Maguire, could not be reached for comment Wednesday afternoon.
Paul Finnerty, a deputy state’s attorney in Chittenden County, agreed that building a case on a BAC estimate formulated from witness accounts and the admissions of a defendant would be a challenge.
Finnerty, who has handled many drunken driving and vehicular homicide cases during his 30-year career, said prosecutors don’t need to rely on the BAC estimate as the cornerstone of their case.
In Vermont, there are two ways to convict a person of drunken driving, he said. One way is to show that their blood-alcohol content is over the legal .08 percent limit. The other way — and the way being sought by prosecutors in Sullivan’s case — is to show that someone is “intoxicated to the slightest degree” and an ability to function is impaired.
“If you charge someone with being under the influence of alcohol, the test results are just another piece of evidence,” Finnerty said. “The jury can give it whatever weight they want. ... It’s useful because people are going to want a number. After hearing about the amount of liquor that he consumed and the other variables, jurors may ask ‘What does that mean?’ By providing a range, jurors can say ‘Oh, OK, it’s within this range.’”
Of perhaps greater significance, he said, are the statements of witnesses who saw Sullivan during the hours before the crash as well as the details of the crash itself, which Finnerty said could be used to infer that Sullivan was drunk.
Details of the crash could all be used as evidence that Sullivan was under the influence of alcohol, he said. These details include a witness account that Outslay was wearing a light-colored jacket and was waving her canes in the air to get the driver’s attention, speed, damage to the vehicle, weather conditions, lighting and the allegation that Sullivan fled the scene after striking the 71-year-old woman,
“The argument is ‘who but a drunk wouldn’t see this woman?’” Finnerty said.