This story by Jordan Cuddemi was published by the Valley News on Feb. 19.
WHITE RIVER JUNCTION — A 34-year-old Lebanon, New Hampshire, man has pleaded not guilty to driving while impaired by marijuana and causing a crash that killed one passenger and injured another on Interstate 91 in Norwich in September.
Keith Cushman. Vermont State Police photograph
Keith Cushman was arraigned on Tuesday in Windsor Superior Court on two felony counts — gross negligent operation with a fatality resulting and gross negligent operation with serious bodily injury resulting — that allege he was high, fatigued and speeding when he lost control of his pickup truck on Sept. 3 and caused the death of Theodore Haley III and injuries to Michelle Hayward, both 37, of Hartford.
Judge Theresa DiMauro released Cushman on conditions, including that he not drive with any detectable amount of alcohol or drugs in his system.
Cushman, Haley and Hayward were headed south on Interstate 91 around 4:30 a.m. when Hayward told police Cushman fell asleep and drove into rock ledges, causing the vehicle to roll over. Haley was ejected and pinned underneath the truck, causing fatal injuries, according to an affidavit written by Vermont State Trooper Jeremy Lyon.
Police spoke with Cushman at the scene that morning and reported his speech was “somewhat slurred and mumbled.” An officer administered a breathalyzer to test for alcohol and it came back negative, Lyon wrote.
Lyon, a drug recognition expert — an officer who is specially trained to test for impairment from substances other than alcohol — conducted a “partial” evaluation on Cushman to test for impairment and determined that he was “not able to operate a motor vehicle safely” at the time of the crash. Lyon couldn’t complete the test because of Cushman’s injuries. He wrote that he couldn’t opine on what drug Cushman was on at the time; Cushman told police he had smoked marijuana the day prior to the crash.
Cushman consented to a blood draw at the hospital, according to reports, and tests showed he had THC in his system. THC is the active ingredient in marijuana that can cause various symptoms including relaxation, distorted perception and euphoria, according to the affidavit.
“Although the defendant indicated he smoked marijuana approximately 22 hours before the crash, the toxicology showed consumption occurring much more recent,” Lyon wrote.
Cushman later told police that Haley and Hayward were smoking in the truck with the windows rolled up, the affidavit states. Police obtained a search warrant for the vehicle and reported finding a small amount of marijuana inside it.
Since the fatal crash, Cushman has been involved in a second motor vehicle crash in which police suspected he was impaired, according to an affidavit from Hartford Police Officer Sean Fernandes. On Oct. 1, Cushman allegedly crashed into a stop sign at the intersection of Maple Street and Cascadnac Avenue in Hartford and fled the scene. No one was injured.
Because of Cushman’s “poor operation and body language,” Fernandes administered roadside sobriety tests, some of which Cushman struggled with, according to Fernandes’ affidavit. Cushman told Fernandes that he had smoked marijuana earlier that day. A drug recognition expert evaluated Cushman but said he didn’t have enough evidence of impairment to seek further testing, Fernandes wrote. (Cushman had tested negative for alcohol intoxication.)
Prosecutors in that case charged him with careless or negligent motor vehicle operation and leaving the scene of the crash, two misdemeanors that he pleaded not guilty to in November. That case is still pending.
Cushman’s fatal crash case highlights some of the complexities the state has prosecuting cases where a person is accused of driving under the influence of substances other than alcohol.
For example, Windsor County State’s Attorney David Cahill filed gross negligent operation charges instead of driving under the influence-related offenses because of potential problems with being able to prove the latter, he said in an interview after the hearing. Both offenses carry the same penalty — up to 15 years in prison.
In order to find Cushman guilty of a DUI-related charge, Cahill said he would need to prove that Cushman crashed because he was impaired, something that could be difficult with the lack of an objective roadside test that demonstrates marijuana impairment, like a Breathalyzer would for alcohol.
Recreational marijuana use became legal in Vermont last July, and Gov. Phil Scott has stressed the need for a such a test.
Currently, the state pairs a DRE’s evaluation with a toxicology report in court.
Defense attorneys in Vermont have questioned the reliability of the DRE’s work. Cushman is being represented by attorney Robert Lees, who declined to comment after Cushman’s arraignment.
Read the story on VTDigger here: NH man pleads not guilty in fatal crash, test finds marijuana in his system.