Expert: Sullivan impaired at time of crash
By Brent Curtis
Staff Writer | May 15,2014
Albert J. Marro / Staff Photo
Christopher Sullivan was in Rutland District Court on Wednesday for a motion hearing.
A prosecution expert testified Wednesday that Christopher Sullivan was impaired by alcohol when he struck and killed a 71-year-old Mendon woman, then drove away.
Dr. David Nierenberg said in Rutland criminal court that an estimated blood-alocohol content of 0.038 percent was the best-case scenario for Sullivan, who has been been charged with drunken driving with death resulting and leaving the scene of a crash on April 10, 2013.
That level is about half of the legal limit for driving in Vermont.
But the clinical pharmacologist from Dartmouth-Hitchcock Medical Center told the court that, in his expert opinion, Sullivan's ability to drive was impaired by alcohol the night he struck and killed Jane Outslay as she walked across Strongs Avenue in Rutland.
“This is exactly the type of impairment where the driver is required to make sudden decisions but his perception and reaction time are impaired,” Nierenberg said at a hearing to decide whether expert testimony about Sullivan's alleged impairment on the night of the crash would be allowed before a jury.
That opinion could prove central to the prosecution's case, which appears, based on Nierenberg's testimony Wednesday, to be focused on proving that Sullivan's driving was impaired by alcohol rather than proving he would have tested over the 0.08 percent legal limit.
The 53-year-old attorney was sober by the time he identified himself as the driver 17 hours after the crash.
But Sullivan told police he'd had six or seven alcoholic drinks during the hours leading up to the crash, prompting prosecutors to file the DUI-fatality charge.
In January, defense Barry Griffith challenged the prosecution's plan to call on an expert to prove that based on the amount of alcohol Sullivan consumed, the time in which he consumed it, his weight and other factors, he was an impaired driver when the crash occurred.
Wednesday, Nierenberg testified that based on models he developed, he was 99 percent certain that Sullivan's blood-alcohol level at the time of the crash was no lower than 0.038 percent and was probably significantly higher.
But even if the blood-alcohol content or BAC was as low as the most conservative estimate, Nierenberg said, studies suggest that drivers begin showing impairment at levels as low as 0.02 percent — a level the average person reaches before done drinking one beer, glass of wine or shot of liquor.
Nierenberg said impairment from alcohol manifests itself in drivers with even low BACs by slowing their reactions in emergency situations.
“That's why Sweden's legal driving limit is 0.02 percent,” Nierenberg said, adding that one other country had a legal limit that low.
But Griffith pointed out during cross examination that the rest of the world sets legal limits at a higher blood-alcohol percentage. He questioned Nierenberg's ability to say definitively that alcohol and not other potential factors were contributors, including the possibility that Sullivan was distracted at the time of the crash.
But Nierenberg said Sullivan's behavior was more indicative of impairment.
“Being distracted doesn't mean you don't swerve or brake (before the crash) or pull over when something has put a hole in your windshield,” Nierenberg said, reeffering to evidence police found at the scene and from examining Sullivan's car.
“That's not distracted driving,” he said. “That's impaired driving.”
Griffith asked whether Sullivan's decision to keep going after striking Outslay might represent a “fight or flight” reaction characterized by an instinctive decision-making process in instances of extreme stress.
But Nierenberg, while acknowledging the concept of “fight or flight” instincts, said he didn't believe they applied in the Sullivan case.
“I disagree that 'fight or flight' happened in a case involving a mature adult who is aware of the laws of the state and has driving sensibilities,” he said. “I've been in an accident and I checked to see if the deer was injured and would sure feel the need to stop if I thought a person was injured.”
Judge Theresa DiMauro did not make a decision Wednesday on the defense motion to suppress the testimony. Instead, she gave both sides until July 11 to file post-hearing memorandums on the issue. The trial is expected later this year.