Blood test results OK'd in boating fatal
Laconia:
By BEA LEWIS
bwheel@metrocast.net
Thursday, April 30, 2009
Blood evidence taken from the operator of a boat involved in a fatal accident on Lake Winnipesaukee last summer can be used against her, a judge has ruled.
Erica Blizzard, 35, of 65 Gold St. in Lakeport, who is charged in the accident which claimed the life of one of the boat's two passengers, had sought to disallow blood alcohol test results from being introduced as evidence, claiming that investigators failed to show probable cause when they obtained a judge's permission to take blood samples.
But on Monday Superior Court Judge Kathleen McGuire ruled that Marine Patrol had probable cause to believe that Blizzard was intoxicated and, as a result, blood samples were lawfully taken from the suspect.
McGuire ruled evidence that Blizzard drove a boat headlong into an island at an unreasonable rate of speed given the weather conditions provided the probable cause Marine Patrol needed to believe the defendant had been drinking alcohol and that evidence of intoxication would be found in the defendant's blood.
Investigators allege that Blizzard was the driver of a 2008 Formula 370 SS and was traveling southeasterly "on plane" when the vessel struck Diamond Island in Gilford on June 15, 2008 at around 2:30 a.m.
In addition to claiming the life of Stephanie Beaudoin, 34, of Meredith, another passenger, Nicole Shinopolous of Burlington, Mass., suffered a fractured jaw. Blizzard also suffered serious facial injuries that required surgery.
The impact of the crash demolished the bow of the boat and apparently broke Beaudoin's neck, killing her instantly, according to Dr. Thomas Rock, an orthopedic surgeon who lives on the island and who rushed to help after hearing the crash. Rock rowed to the sinking boat with his wife and saw Blizzard slumped over the controls of the boat, court records indicate.
Blizzard is charged with alternate counts of negligent homicide, charging that she was either under the influence of drugs or alcohol at the time of the crash that resulted in the death of one of her passengers or that she failed to keep a proper lookout. She is also charged with one count of aggravated driving while intoxicated.
Court records also show that it was rainy and foggy when the boat hit the rocky shoreline of the island and that Shinopolous told Marine Patrol they were traveling at about 25 or 30 mph when the accident occurred.
Photographs of the controls of the boat taken by Marine Patrol the night of the crash show the steering wheel in a straight-ahead position.
The shift lever for one of the engines was in full position while the shifter for the second engine was in reserve at almost full throttle.
All of the gauges were normal and at least one of the engines had broken its mount. Fiberglass was embedded in a granite ledge about five feet off shore, showing the point of impact by the boat, according to court records.
Attorney James Moir of Concord, who is representing Blizzard, had argued for the results of his client's blood test to be thrown out.
Belknap County Attorney Jim Carroll maintained that the state was relying upon exigency as a legally valid exception to the warrant requirements of the Fourth Amendment of the U.S. Constitution and Part I, Article 19 of the New Hampshire Constitution.
He argued Marine Patrol had to act fast since Blizzard was being transferred to Dartmouth-Hitchcock Medical Center in Lebanon, which placed her beyond the immediate control of local law enforcement.
The state seized six samples of Blizzard's blood, some taken by Lakes Region General Hospital as part of efforts to save her life, court records indicate. The first sample was taken two hours after the crash.
Moir had argued that Marine Patrol lacked probable cause to obtain the warrants it used to seize samples of Blizzard's blood taken at LRGH and DHMC, where she was later transferred for treatment of her injuries.
The affidavit filed by Marine Patrol Lt. Tim Dunleavy, Moir argued, failed to show probable cause that the test results from the blood samples would prove intoxication. Judge McGuire disagreed.
"The state has also met its burden of showing exigent circumstances, given that this accident occurred in the middle of the night when obtaining a warrant is more difficult," the court wrote.
The judge also cited the "evanescent nature of blood alcohol evidence making its preservation impossible without removing samples from the body."
An affidavit filed with the court cites Shinopolous telling a Marine Patrol officer that the trio drank alcohol at the Wolfe-Trapp in Wolfeboro earlier in the day and Marine Patrol's discovery of "several" empty beer cans at the crash site.
Moir said the affidavit was defective because it failed to state how much the woman drank, exactly when, where the beer cans were found or how they relate to the crash or the driver.
In discovery materials Moir said Shinopolous told Marine Patrol Sgt. Joshua Dirth they had "two drinks, if that" and reported that the defendant and Beaudoin had "Grey Goose and cranberry" but did not finish their drinks.
Moir challenged whether Judge Edward Gordon would have signed the warrants had that information been included in the affidavit, as well as Shinopolous' opinion that Blizzard wasn't drunk.
She was interviewed by Marine Patrol two days after the crash and asked whether she thought Blizzard was impaired. She replied, "No," prompting Sgt. Dirth to inquire, "None at all?"
"No, I carried on conversations with her; she seemed to really be about herself; there was nothing that would make me think she was impaired at all," Shinopolous said.
Blizzard remains free on $75,000 personal recognizance bail. A pretrial hearing has been set for next Wednesday with jury selection now scheduled for May 26.