Attorney argues against vehicular homicide charges
A Merrittstown motorist accused of killing another driver while allegedly drunk in a 2012 crash in Redstone Township wants a Fayette County judge to consider information supporting a pretrial motion to dismiss the case for lack of evidence.
On Tuesday, Michael Steven Sherman, the attorney representing Gary Lee Brackenbury Sr., 33, submitted briefs to the court bolstering testimony and evidence provided at hearings that took place earlier this year. Brackenbury faces charges of homicide while driving under the influence, aggravated assault while DUI and other charges stemming from a collision that took place Aug. 1 near the intersection of Royal Road and Route 40.
Anthony Wayne Balosky, 35, was killed in the crash.
Sherman argued that the case should be dismissed because prosecutors failed to present evidence that Brackenbury was impaired from drinking, nor that drinking was a causal factor in the accident. He referred to testimony provided by Redstone Township Police Sgt. Norm Howard, who previously testified he was off duty on the night of the crash and encountered Brackenbury at a bar on Route 40 about 20 minutes before the incident.
Sherman noted that Howard, who he said is trained to identify intoxicated drivers, testified that Brackenbury was not impaired. At a hearing in March, Howard testified he observed Brackenbury drink about three shots of alcohol and leave the bar with a six-pack of beer the night of the crash. Sherman said the investigators at the scene of the accident should not have assumed that the defendant appeared “woozy” because he was drinking. Rather, he wrote, testimony indicated Brackenbury was thrown from his vehicle while it was airborne.
“Clearly,” Sherman stated, “no individual who was just thrown from their vehicle in the manner described by the commonwealth’s witnesses could jump like Superman and be expected to not be ‘woozy.'”
Without more evidence to the contrary, Sherman said, the evidence shows that Brackenbury was not intoxicated but that he mistakenly chose to pass another vehicle. “A mistaken choice; but not a criminally negligent choice,” he wrote.
Sherman also refuted the aggravated assault by vehicle charge, arguing that the charge applies when a defendant causes another person serious bodily injury, meaning a bodily injury which creates a substantial risk of death, or which causes serious permanent disfigurement, impairment or loss of function.
“In this case, the decedent did not suffer an injury that created a ‘substantial risk of death,’ he suffered actual death,” Sherman wrote.
Another element of the case that Sherman attacked was the blood evidence gathered by police to determine Brackenbury’s level of intoxication. Sherman said Brackenbury’s blood was sampled within minutes of the accident to establish a blood-alcohol content reading, but a township police officer failed to properly store the sample.
“Now, the blood sample is worthless because it’s contaminated,” Sherman wrote. He claimed the failure to preserve the evidence, which may have actually proved Brackenbury was not legally intoxicated, amounts to a violation of his state and federally protected constitutional right to due process under the law.
Furthermore, Sherman indicated that Brackenbury had never consented to have the blood drawn nor was a warrant obtained to collect blood evidence. Sherman’s filing indicated that prosecutors allege Brackenbury’s blood-alcohol level was above .16 percent, which is twice the legal limit.
Sherman claimed that a blood sample obtained at UPMC-Mercy in Pittsburgh while Brackenbury was there for treatment following the crash was not whole blood but instead plasma and is, therefore, inadmissible as evidence.
Sherman also contended that the warrants obtained to seize Brackenbury’s vehicle and search it were “patently overbroad” and not based on probable cause, thereby making them unlawful warrants.
Additionally, Sherman argued that statements Brackenbury made to the police at the scene of the crash should be suppressed because Brackenbury was not informed of his right against self-incrimination and right to have legal counsel present during questioning, although he was not yet under arrest.
“When analyzing the situation from the perspective of the accused, the officers’ show of authority in authorizing a blood draw and ordering the actions of personnel around the scene, any reasonable person would feel that they do not have the ability to leave,” Sherman wrote. “Since it is patently clear that his freedom of action was restricted, the officers necessarily should have apprised Mr. Brackenbury of his rights before questioning him.”
In summary, Sherman stated, “The officers did not observe the defendant slurring his speech or displaying glassy bloodshot eyes. The officers did not personally witness, nor did they hear testimony about the defendant’s driving that indicated intoxication such as swerving outside of his lane.
The officers became aware that the area of the accident has been the site of two other fatal accidents in the last five years.
When taken together, the facts serve to explain the reason for the defendant’s accident, rather than indicate he was intoxicated.
The facts indicate that there is a very logical explanation for an odor of alcohol — the beer bottles (purchased by Brackenbury 20 minutes prior to the crash) smashing.” He concluded that the commonwealth has failed to establish evidence sufficient to move forward with the case.
A judge will rule on the motion at a later date.