Impairment is disputed as vehicular homicide trial begins

EVERETT — That afternoon the kids had tagged along for an errand, to check out a van for sale in Seattle. The Snohomish County mother found the price was too high. So they turned around to go home.

The crash came with no warning. In an instant on Feb. 3, 2017, the back of the Nissan Quest crumpled. The space where the cousins were sitting was replaced by the grill of a Ford F-250.

The girls, Amiyah Johnson, 12, and Yesterday Wallace, 2, suffered injuries no one could survive. Two boys, 5 and 7, had broken bones and wounds that are still healing.

Snohomish County deputy prosecutor Tobin Darrow opened a bench trial Tuesday by recounting the horror of the rear-end collision on that wet winter afternoon on I-5, near 164th Street SW in Lynnwood. Prosecutors allege the Ford driver, Todd Eugene Brown, was driving while high on methamphetamine. He is charged with two counts of vehicular homicide while under the influence.

A state lab tested his blood at about 1.0 milligrams of meth per liter of blood. That is five times the amount that is considered drug abuse, and almost double the median level for recreational users, according to the National Highway Traffic Safety Administration.

The defense attorney, Caroline Mann, countered that the evidence doesn’t show Brown, 52, was impaired. In an opening statement, Mann told Superior Court Judge Linda Krese that the defense did not dispute the tragedy or who was driving. However, she argued it was an accident.

“The accident, it happened so quickly, there’s really no witness that had a clear view,” Mann said.

State troopers found no sign that Brown braked before the crash. The girls were pinned in the van. Amiyah, a sixth-grader at Olympic View Middle School in Mukilteo, died at the scene. Yesterday died later in the night.

Darrow spent about 30 minutes mapping out the state’s case.

Both sides agree Brown showed no blatant signs of being under the influence of a drug. There were hints, according to the prosecutor. His eyelids tremored, his eyes were slightly bloodshot, he didn’t do a perfect job on the one-leg stand and his estimate of a 30-second interval came in about 11 seconds late. Yet a drug recognition expert did not conclude Brown was impaired based on field sobriety tests.

A trooper offered Brown, who had no felony or misdemeanor record, a voluntary blood test to prove he wasn’t impaired.

“This is where the nature of their conversation really changed,” Darrow said. “Suddenly, when they talk about the blood test, the defendant started to really focus on the word, ‘voluntary.’ … He started to say, ‘Well, it’s been a long day.’”

He eventually agreed to take the test.

Brown had been driving his work truck home from a job site in Tacoma when traffic slowed to about 30 mph around Lynnwood. According to the defense, a car in front of him darted out of his lane.

“There was a wall of brake lights, and he didn’t have time to stop,” Mann said.

Earlier this year, the defense attorney tried to have the case dismissed on the grounds that the state couldn’t prove how methamphetamine might affect her client. The drug’s impact on driving has not been studied as rigorously as, say, that of alcohol. A Snohomish County judge ruled in February that the case could proceed to trial.

There’s no jury in a bench trial. The case will hinge on whether Judge Krese sees proof that Brown was under the influence.

“At the conclusion of the case,” Mann argued Tuesday, “I anticipate the court will find no signs of physical impairment or mental impairment, or any reason to suspect drug use.”

Caleb Hutton: 425-339-3454; chutton@heraldnet.com. Twitter: @snocaleb.