Vehicular assault charge revived against Freeland businessman
By JESSIE STENSLAND
Whidbey News Times Assistant editor
August 17, 2010 · Updated 2:44 PM
The state Court of Appeals this month ruled that a judge abused his discretion when he suppressed crucial toxicology testimony in a vehicular assault case against a Freeland businessman.
The result is that 50-year-old Leroy Olsen III may face trial after all, unless he successfully appeals the court decision or agrees to a plea deal.
“We intend to fully pursue the case,” Island County Prosecutor Greg Banks said Thursday.
Prosecutors charged Olsen with vehicular assault, based on the “under the influence” prong of the charge, in September of 2008.
Olsen crashed his 2008 Audi R8 high-performance sports car into a tree, sheering it in half, on Goss Lake Road in March of 2008. His passenger, Kim Blain, suffered a broken pelvis in the crash, according to court documents.
An investigator with the State Patrol found that alcohol and speed contributed to the accident, court documents state. Olsen’s blood-alcohol level was measured at 0.23, or nearly three times the legal limit, a little over two hours after the collision, according to the trooper’s report.
Olsen could not be reached for comment. Olsen’s former attorney, Bill Hawkins of Oak Harbor, said previously that the crash was not caused by alcohol use, but that Olsen was steering to avoid a deer on the road. Hawkins said the car dealer had warned Olsen about the danger of hitting deer in such a car; a trooper had seen deer at the scene of the crash.
The prosecution ran into trouble just before the trial was set to start last August. Chief Criminal Prosecutor Colleen Kenimond had taken over the case from another deputy prosecutor and discovered that the defense hadn’t been notified about a toxicology witness who would testify about “retrograde extrapolation.” The prosecution needed the expert to testify that Olsen was intoxicated at the time of the accident by extrapolating backwards from the result of the blood sample taken more than two hours after the accident.
After Kenimond notified the defense, the attorneys moved to exclude the expert testimony on retrograde extrapolation based on discovery violations, and in the alternative, prosecutorial mismanagement. The attorneys contended they didn’t have enough time, with only 30 days left on the speedy-trial clock, to effectively address the issue at trial.
The case was handled in Island County Superior Court by a judge from Skagit County because both Island County judges recused themselves. Judge John Meyer sided with the defense attorneys on their motion to suppress the expert testimony. Kenimond then moved to dismiss, arguing that she couldn’t go on without the retrograde extrapolation evidence.
Judge Meyer dismissed the case and the prosecution appealed his exclusion of the testimony.
Banks argued the case in front of the appeals court earlier this year. He argued that Judge Meyer had abused his discretion by suppressing the evidence. He admitted the prosecution’s inadvertent discovery violation, but he said the judge’s remedy was essentially too harsh.
The appeals court agreed.
“Exclusion of the evidence is an extraordinary remedy. The court had other feasible discovery sanctions available to it. Because the failure was not in bad faith and because the record before us demonstrates no significant prejudice to the defendant from the alternative sanctions, we hold the trial court abused its discretion in excluding the evidence,” the court’s unpublished opinion states.
Banks said the defense has 20 days to file a motion for reconsideration and 30 days to petition the state Supreme Court to review. If the motion or petition aren’t filed, the case will be remanded back to Island County Superior Court for trial.Contact Whidbey News Times Assistant editor Jessie Stensland at firstname.lastname@example.org or 360.675.6611 ext. 5056.