Trial Report – Bend DUII Accident, Part II
The judge in the Bend DUII-auto accident case was the Honorable Kip Leonard from Eugene. He was an excellent judge – and funny to boot.
The Defense Attorney was Brian Driscoll of Smith Freed Eberhard. He did a fine job and was easy to work with.
The main issues in this case were as follows:
- We could not get into evidence the fact that the defendant pleaded no contest to the DUII, nor the subsequent diversion. However, I was able to get into evidence that he had pleaded guilty to reckless driving involving alcohol in 1996.
- The judge would not allow the arresting deputy to testify that he thought that Defendant was legally intoxicated, nor that he arrested him for DUII. I got around this, however, by asking whether he would arrest someone he pulled over who was exhibiting the exact same symptoms for DUII. He replied “without a doubt.” While this was an excellent answer for us, because of the refused field sobriety test or breathalyzer test, I had less than ideal evidence of intoxication.
- The assisting deputy testified that he did not observe any signs of intoxication at the scene. I pointed out that his interaction with the defendant was extremely limited, a statement with which he agreed readily.
- The bartender testified that he did not feel that the defendant was endangering himself or others when leaving the bar – i.e., was not too drunk to drive. I pointed out the fact that it is illegal to over serve and let the jury come to its own conclusion as to why his testimony differed from his statement to the investigating deputy.
- Our client never missed work. He continued to work 100+ hours a week. Literally.
- I had to deal with a two-year gap in treatment, plus the fact that our client refused to have arthroscopic surgery as recommended years ago because he thought that his doctor “was a joke.”
- Our client testified that he was on the phone with 911 when hit. However, the 911 tape has him stating that “this guy almost hit ____ (static).” Then, 30 seconds later he says that he had been struck with the car. The Defendant maintained that our client said “me” at the static point, where I pointed out that it may have been “car” as you can hear the “r” when the static ended.
- Our client testified that he had scratches that were bleeding at the scene and that the deputy pointed that out to him. However, the deputy testified that he had looked for physical injury, that it was important for him to do so, and that he could find none.
- Our client had denied that he was injured to the 911 operator.
Experts testified on both sides. We had retired orthopedic surgeon Dr. Tom Carlsen testify based on a records review only. Dr. Carlsen testified that our client’s injuries are permanent, not likely to improve on their own, and will necessitate further treatment, including surgery.
The Defense had Dr. John Ballard, an orthopedic surgeon from Salem, testify. He conditionally opined that our client ‘s accident-related injuries resolved by March 2009, though his only basis for that opinion is that our client had stopped frequent medical treatment in March 2009 – that two-year delay of treatment I mentioned earlier. Dr. Ballard further testified that our client’s current condition could be related to cystic degeneration of the patellar tendon, a symptom which was picked up on a second MRI three years post-accident. On this point, Dr. Carlsen testified that the cystic degeneration was likely a result of trauma, even though the initial MRI didn’t show trauma. Of course, Dr. Ballard disagreed.
Our client, his tax consultant, and his bookkeeper testified as to the downward trend in his business and the extra employees he hired. The overall downward trend of the construction economy in central Oregon certainly didn’t help us on these points. The Defense had forensic CPA Gregson Parker testify. He did well, but everyone in the courtroom was confused by his explanation of his complicated charts. He did admit the points I cross examined him on, however.
My next post will detail the results of the trial.