A charge of vehicular assault against a well-known Freeland businessman was dismissed last week after a judge suppressed the testimony of a crucial toxicology expert.

The prosecution neglected to tell the defense about their intention to call the expert witness until a few days before the trial, which the judge considered a violation of court rules. Chief Criminal Deputy Prosecutor Colleen Kenimond said she has asked the judge to reconsider, and if that doesn’t work, she’ll turn to the appeals court.

Leroy Olsen, 49, was charged in Island County Superior last September with vehicular assault. Olsen crashed his 2008 Audi R8 into a tree, sheering it in half, on Goss Lake Road in March of 2008. His passenger, Kim Blain, the owner of PayLess Foods in Freeland, suffered a broken pelvis in the crash.

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 report. Also, a witness saw Olsen driving at a high rate of speed and cross the centerline just before the accident, the state trooper wrote.

Olsen maintained that he drove off the road to avoid striking deer, court document indicate.

Olsen is well known in the Freeland community for putting on the popular fireworks show over Holmes Harbor. His construction company, Mick Olsen Corporation, is also in Freeland.

Olsen is represented by Oak Harbor attorney Bill Hawkins and Bellevue attorney Diego Vargas, “one of the state’s preeminent DUI defense attorneys,” Kenimond wrote.

Olsen was charged with vehicular assault based on the “under the influence” prong of the crime, which requires the prosecution to show his blood-alcohol level was over the legal limit within two hours of the accident.

Since Olsen’s blood sample was taken just over two hours afterward, the prosecution needed to have an expert testify about “retrograde extrapolation” of the blood-alcohol level. In essence, the expert would testify that Olsen was intoxicated when the accident occurred, based on the blood sample, according to Kenimond.

Former deputy prosecutor Patrick McKenna, who originally handled the case, inexplicably told the defense counsel in January that he would not need to call an expert to testify about retrograde extrapolation. But just before the trial, Kenimond notified the defense that she would be calling the expert.

Hawkins said Kenimond’s “mismanagement of the case” would have resulted in the defense having an unfair disadvantage at trial. At the time the case was dismissed, there was 30 days left on the speedy trial clock. That means the defense would have 30 days to find and prepare their own expert witnesses to counter the prosecution’s expert.

“That’s a really tall order…” he said. “This is all about an eleventh hour surprise, though I want to stress that it was an unintentional mistake on the prosecution’s part.”

But Kenimond argued that her expert would be giving generic, run-of-the-mill testimony that should be easy for the defense to deal with, especially a DUI expert like Vargas. She said suppression of the evidence was not the appropriate remedy.

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 asked Meyer to dismiss the case because she couldn’t proceed without the testimony; the judge agreed.

Hawkins said the case against Olsen has other obstacles. The attorney argues that the crash was not caused by alcohol use, but because Olsen was steering to avoid deer on the road. Hawkins said his client’s car was a low-slung sports car and the dealer had warned Olsen about the danger of hitting deer in such a car.

“A trooper at the scene also saw two deer in the roadway,” Hawkins said.

In addition, Kenimond said Blain is not cooperating with the prosecution. Blain and Olsen have married since the accident, according to Kenimond.