An attorney for a former Hamilton County reserve deputy accused of being under the influence during a fatal car wreck wants to suppress any evidence obtained from a search warrant affidavit.
Attorney Lee Davis, who is representing Justin Whaley, the 38-year-old man who faces nine crimes in connection with the fatal July 3, 2018, wreck of James Brumlow, wrote in a motion filed Monday that authorities didn't establish probable cause to draw Whaley's blood and test for alcohol.
On July 3, around 5:40 a.m., Brumlow, 36, was driving to work on Highway 111 when he was struck by Whaley going the wrong way on a divided highway separated by a cement barrier, prosecutors say. After the collision, Whaley called 911 and, according to a search warrant affidavit filed by a Soddy-Daisy police officer, told dispatchers that he'd consumed alcohol the night before.
From there, officer Jeremy Wright got permission from Marty Lasley, the Soddy-Daisy magistrate, to test Whaley's blood. That happened about four hours after the incident, and Whaley's blood alcohol content came back as .02, according to court documents.
But Wright's search warrant affidavit was too sparse on the details to establish probable cause of intoxication, Davis wrote in his motion. The officer wrote that Whaley's body odor smelled of "an unknown intoxicant," Davis wrote. But he didn't detail when Whaley drank alcohol, how much he drank, or how many hours had passed, Davis said. He also didn't include any physical description of what Whaley was doing or any mention of a field sobriety test, Davis said.
"This court has seen literally tens of thousands of affidavits that contain descriptions of criminal defendants who have consumed too much alcohol and are intoxicated," Davis wrote in a motion. "Those affidavits include details involving the defendants' speech, swaying, standing, falling, ability to follow directions, ability to communicate, how they perform on field sobriety tests, their ability to retrieve their license, registration or insurance from their vehicles or wallets, and dozens of other details about why a particular defendant is impaired. These details are totally missing from the affidavit at issue and the conclusory allegations remaining fail to establish probable cause in this case."
Assistant District Attorney Chris Post declined to comment on the motion Tuesday through an office spokesman. But Post has already opposed Davis on a different but similar issue: Whether Whaley's blood alcohol results should be suppressed from evidence.
In a motion filed in May, Davis said Whaley's low alcohol content of .02 is unreliable "in that the state intends to extrapolate from these test results and allege that the defendant was DUI at the time of the accident." He added that testing it four hours after the incident was unreasonable. In response, Post disagreed four hours was too long and said a jury should weigh the issue. He added that Soddy-Daisy officers on scene had to type the search warrant, get a judge to approve it, and then wanted an authorized member of the Soddy-Daisy Fire Department to draw the blood — except the department declined because the department knew Whaley and wanted to avoid a conflict.
Attorneys will discuss both issues further on Aug. 19 at 1:30 p.m. in Hamilton County Criminal Court before Judge Barry Steelman. So far, Steelman has ruled that jurors can be sequestered at trial after Davis filed a motion saying the amount of media coverage and online comments by members of law enforcement about Whaley's case could lead to an unfair trial. Steelman is still considering whether a jury needs to be picked from a different county.
Whaley is charged with vehicular homicide, reckless driving, driving on divided highway, failure to yield, failure to maintain lane, speeding, drivers to exercise due care and two counts of driving under the influence.
Contact staff writer Zack Peterson at email@example.com or 423-757-6347. Follow him on Twitter @zackpeterson918.