Nature of the Case
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Facts
D was involved in a one-vehicle rollover when it veered off the right shoulder of the road surface near the beginning of a left curve. Nicholas John Clare was killed. The accident caused D, Clare, and another friend (Morgan) to be ejected from the truck. The EMTs declared Clare dead on arrival. The paramedics performed aid on Larson whom they feared had a spinal fracture. They smelled alcohol on his breath, and D admitted to one of the EMTs he had been drinking. Officer Noel Durham, who received Larson at the hospital, also stated he smelled alcohol on D's breath. Officer Jerril Ren arrived at the scene and noticed skid marks at the accident scene indicating D's vehicle had drifted off the right side of the roadway, overcorrected, and continued across the highway into the east ditch. When asked by Officer Ren, D admitted he and the others had been drinking at various residences and bars as well as in his vehicle. D admitted he had consumed between ten and twelve drinks during the evening, including beer and whiskey. D recounted how he had been momentarily distracted during a conversation with Clare and drifted off the right side of the roadway. D overcorrected and turned the wheels towards the skid when the vehicle flipped. A sample of D's blood alcohol concentration was 0.12%. The officers arrived at speed estimates of 84 to 89 mph at the time the pickup crashed. Sergeant Sangray determined the accident was caused by speed, inattentive driving, alcohol influence, and failure to wear seatbelts. D's expert indicated D's speed at the time of the accident was between 63 to 71 mph with a standard deviation of plus or minus 4 mph. Dr. Lee disputed the officer's calculations, in particular, alleging they only used three skid marks when the prevailing science required four. The officers' estimates, Dr. Lee testified, were too high and did not reflect D's speed accurately. D was charged with negligent homicide. P filed motions in limine seeking to exclude evidence of other traffic accidents near the same location; evidence of the erection of new highway signs at the location of the accident; and evidence of Clare's blood alcohol concentration. D filed a motion in limine to exclude any evidence involving the 'retrograde extrapolation' of his blood alcohol concentration test administered after the accident. The Court denied the request to exclude evidence of other traffic accidents but granted P's request to prohibit evidence of new highway signs unless offered to rebut or refute evidence from P that it did not consider the site of the accident to be dangerous. It granted the request to exclude evidence of Clare's blood alcohol as well as D's request to exclude any evidence regarding the retrograde extrapolation results of the blood alcohol concentration test. D objected to the instruction for criminal negligence:
A person acts negligently with respect to the death of a human being or to a circumstance when an act is done with a conscious disregard of the risk that death of a human being will occur or that the circumstance exists or when the person disregards a risk of causing the death of another human being which the person should be aware that the result will occur or that the circumstance exists. The risk must be of a nature and degree that to disregard it involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. 'Gross deviation' means a deviation that is considerably greater than lack of ordinary care.
D objected on the grounds the word ' consciously' should have been inserted before the word ' disregards' in defining criminal negligence. D was convicted and appealed.
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