MARTINSBURG - A Berkeley County Magistrate on Thursday dismissed a driving under the influence resulting in death charge against a woman who struck and killed a pedestrian on W.Va. 9 in December.
The magistrate ruled there was insufficient evidence to support a finding of probable cause in the case. The ruling means the magistrate did not think the case should be presented to a grand jury.
The ruling effectively dismisses all charges against the woman. Prosecutors say they will proceed with their efforts to indict the woman.
The woman, Aimee R. Dugger, of Blanchard Lane, Martinsburg, who was 24-years-old at the time, was charged with driving under the influence resulting in death after the accident. Hospital records showed a blood sample drawn for her after the accident indicated her blood alcohol concentration at the time of the accident was .192 - more than twice the legal limit. She told police after the accident she had only had a glass of wine with dinner.
The accident happened on Dec. 17, 2005 at about 1:35 a.m. when Dugger was merging her black Mitsubishi Eclipse onto W.Va. 9 West after exiting Interstate 81 from the exit 16 off ramp. She then struck 65-year-old Thomas Bish who was standing in the right hand lane of the highway. By police estimates, Bish was dragged for about 121 feet, or 40 yards, on the front left side of Dugger's hood and windshield before her vehicle stopped. No skid marks were found.
Bish died at the scene within 20 minutes after Trooper C.A. Ellwanger of the West Virginia State Police, who investigated the accident, arrived at the scene.
"This court finds there is not probable cause for this charge to go forth," Magistrate James Humphrey said at the end of the hearing.
Both state and defense attorneys conceded Thursday that Dugger's actual blood alcohol content (B.A.C) would have been lower because a mathematical conversion was needed, apparently due to the difference between whole blood and blood serum.
Still Dugger's actual B.A.C. would have been at least .16, they said, which is twice the legal limit. (.08).
Assistant Prosecutor Joshua Henline, who represented the state, said he was shocked by the judge's decision.
"I'm basically in shock and awe. I have no clue what just happened here. How can a person blow a .19, strike someone and there is no probable cause? ... I'm just dumbfounded," Henline said.
He said his personal opinion was that Humphrey based his decision on the fact that Bish had been known to walk in the road in the past.
Dugger's attorney, Harley O. Wagner, thought Humphrey's decision was the right one.
"I think it is clear that, through these proceedings, that there exists significant doubt as to Ms. Dugger causing this accident," he said. "Clearly the presiding magistrate felt there was not enough probable cause to believe that she caused this accident and the facts seem to wholly support that."
Wagner argued during the hearing that Bish was a "street walker" who had been known to walk in the middle of the road while drunk and was jaywalking when he was struck. Individually wrapped packages of methadone were found on Bish's body after the accident, he pointed out as well.
"He was in a place where a pedestrian had no place to be. He was standing in the middle of an interstate area," Wagoner said.
Dugger told police she never saw Bish in the road. He was wearing a dark jacket and blue jeans at the time.
"We've been known to stop Mr. Bish for walking in the middle of the road intoxicated," Ellwanger said on cross-examination.
He said he had no way of determining whether Bish was just standing in the road or was actually crossing.
"I think he was walking back from Food Lion and crossing over," Ellwanger said during testimony.
Wagner said the crux of the case wasn't whether Dugger was intoxicated but whether she should be held responsible for the accident. He used an analogy of a legally intoxicated person sitting at stoplight being rear ended from behind by another car causing them to hit a pedestrian.
"It's sort of like saying one plus one equals three," Wagner said.
Henline argued that the law is clear when it states whether or not a person is legally or illegally crossing the road a driver has the duty to exercise due care while driving.
Further he said the area where Bish was hit was well lit and the reason why Dugger was unable to see Bish was because she was intoxicated not because of the clothes Bish was wearing.
"A life is a life regardless if the person is a so called street walker...regardless if a person walks the street drunk. He still had a life, a life worth living," Henline said.
Henline said the state would push forward with the case adding that the prosecutor's office is committed to defending the lives of others regardless of a person's background.
"The state will definitely be pressing forward with this case regardless," he said