Judge won’t exclude Witt blood-draw results from trial

(Update: Judge won’t exclude blood-draw results from upcoming trial)

A Deschutes County judge on Monday refused to exclude the results of blood drawn from Shantel Witt, who is set to go on trial next month on DUII and manslaughter charges in a crash that killed Bend bicyclist Marika Stone nearly a year ago.

Circuit Judge Michael Adler rejected a defense request to suppress the blood draw results as evidence, as they claimed it should have waited until after a search warrant was sought and received.

Adler noted that sheriff’s Sgt. Kent Vander Kamp, the primary investigator on scene, is trained in drug recognition.

He said the time aspect is an important element, as levels of drugs in someone’s system can dissipate over a fairly short period of time, compared to alcohol.

The judge agreed that Vander Kamp had probable cause to arrest Witt on a DUII charge.

Adler called the 70 minutes between the crash and Witt’s arrest a significant time and said Vander Kamp acted “quite expeditiously,” conducting the on-scene investigation in about 45 minutes.

He said it would have taken a significant amount of time to obtain a search warrant. And he called it a critical factor that Vander Kamp did not know if evidence could be lost during even a short delay.

Blood was drawn two hours after the crash, and Witt consented by signing a form at St. Charles Bend. The search warrant, which was for more than a blood draw, was “not important, in my view,” the judge said.

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Earlier story:

The Bend woman accused of killing a cyclist east of town nearly a year ago was back in court Monday (Dec. 10) for a hearing to decide whether certain evidence, such as the results of a post-crash blood test, will be allowed or excluded from her manslaughter and DUII trial, scheduled for next month.

On Dec. 30 of last year, police said, Shantel Witt, now 42, was driving a pickup truck that struck and killed Bend cyclist and dentist Marika Stone, 38, on Dodds Road east of Bend.

Witt’s lawyer, Bryan Donahue said in court Monday he wants the results of Witt’s blood test kept out of the trial, arguing the sample was taken without a warrant.

Prosecutors called as a witness Deschutes County sheriff’s Sgt. Kent Vander Kamp, the first law enforcement officer on the crash scene. He was asked to describe the scene and the Witt’s state when he arrived.

Vander Kamp said when he walked up to her vehicle, she was going through her phone. When he asked her if she was alright, Vander Kamp said she responded with, “Why wouldn’t I be okay?”

He described Witt as pale and tired-looking, with glassy, constricted eyes, slow to react to a flashlight, and confused and slow speech.

Vander Kamp said when Witt opened the door of her pickup, she had to balance herself on the vehicle. He said she was walking cautiously, as if she were walking on the shifting deck of a boat.

He said Witt told him she’d hadn’t drunk any alcohol, but was taking two prescription drugs, Wellbutrin and Paxil.

Vander Kamp also said he chose non-standard tests for sobriety because she was struggling with physical ones, which she blamed on an amputated pinky toe several years ago.

Prosecutors played the audio recording of Witt’s field sobriety test in Circuit Judge Michael Adler’s courtroom.

In the recording, Witt is heard saying she didn’t know how she hit the cyclist.

She is asked to walk a straight line, one foot in front of the other, and has to check which foot is her left foot. She isn’t able to finish the test, telling Vander Kamp she can’t do it.

She also skipped several letters when asked to recite the alphabet between the letters of “F” and “R.”

She tells the sergeant the date is Dec. 28 and is able to count from 87 to 100, then back down to 90.

When asked if she’ll submit to a blood or urine test. she’s heard saying “no.” Then she is placed under arrest for suspicion of DUII.

The audio included sound of Witt having her blood drawn at St. Charles Bend, termed an “exigency draw.” Vander Kamp said this was performed immediately for fear that any alcohol or blood would dissipate from Witt’s system.

In another blood draw a little after 9 p.m. that night, some of the substances detected earlier had already dissipated from Witt’s system.

Witt is heard on the tape telling an officer she had taken hydrocodone and Soma earlier due to back pain, but doesn’t mention it again. She apparently signs a form, giving consent to draw blood.

The defense said Witt’s signature does not signify consent — rather only “mere acquiescence,” because she was heard at the crash scene refusing a blood test.

The defense also claimed Vander Kamp chose a slower method of obtaining a warrant than he should have, taking more than two hours to write up a request for a warrant.

In response, prosecutors argued that there is no evidence that there was a faster way to obtain a warrant.

They also said an attempt by Vander Kamp to shorten the request for a search warrant to quicken up the process could have resulted in not getting the search warrant, or an issue later with lack of information.

A forensic toxicologist from the Oregon State Police Crime Lab, Robert Jones, was called to the witness stand by prosecutors Monday afternoon to testify about how controlled substances dissipate from the human body after a period of time.

Jones said the best practice for determining whether or not a person has taken drugs are to collect blood and urine samples as soon as possible.

Witt is facing manslaughter and DUII charges, as well as two counts of recklessly endangering another person and unlawful possession of Oxycodone and another controlled substance. She’s also facing a $32 million wrongful death civil lawsuit filed by the Stone estate.

A trial readiness hearing is scheduled for Jan. 24 and an eight-day jury trial is set to begin on Jan. 29.