Kennewick man wants vehicular assault conviction tossed

SPOKANE -- A Kennewick man serving a five-year prison sentence after crashing into a bicyclist on a charity ride in Columbia Park is asking an appeals court to throw out his vehicular assault conviction.

Spokane attorney Susan Gasch, representing Troy Hamilton Trusley, argued Tuesday before the Washington State Court of Appeals in Spokane, that the blood test that showed her client was under the influence of methamphetamine should have been tossed out.

Gasch also said Trusley wasn't properly informed of the impact of having a judge instead of a jury hear his case, and contends the information in the court documents didn't clearly inform Trusley about the charge he was facing.

Megan Bredeweg, a Benton County deputy prosecutor, argued that the conviction should stand. She told the three appellate judges they shouldn't consider the blood test argument because there was no challenge to it during the trial.

Trusley, 33, opted not to have a Benton County Superior Court jury hear his case and was convicted by Judge Craig Matheson after a two-day trial last year.

He was sentenced April 16, 2010, to five years and three months in prison for the May 2009 crash.

Cindy Easterday Goulet was participating in the 25-mile Inland Empire Bike Ride on Columbia Park Trail in Kennewick when she was hit from behind by Trusley near Edison Street.

The West Richland woman was thrown onto his windshield and suffered two broken ribs, a cracked rib and a concussion. She was wearing a helmet.

Police said Trusley was driving 32-37 mph in the posted 25-mph zone.

During his sentencing, Trusley was emotional as he apologized but continued to maintain that "it was an accident."

Gasch began her arguments addressing the issue of the blood test, saying the results should not have been allowed at the trial because there was no proof the sample was properly preserved.

State law requires blood samples be preserved with an anticoagulant and an enzyme poison to prevent clotting and to stabilize the alcohol content, she said.

Gasch almost was immediately interrupted by Judge Laurel Siddoway, who said enzymes prohibit the breakdown of alcohol in the blood, but questioned whether it does the same for drugs.

Judge Kevin M. Korsmo also said Gasch's argument appeared to be an evidentiary challenge and questioned why it wasn't brought up at the trial.

"We generically have testimony from a police officer that the test tube contains anticoagulant, and a toxicologist said the tubes they send out have anticoagulant and enzyme," she said. "The label said the tube contained sodium chloride, but there is no testimony that sodium chloride is either an anticoagulant or an enzyme."

Gasch also said there's no evidence showing that there was a sufficient amount of anticoagulants or enzymes in the tube to do what they're supposed to do.

Bredeweg countered that a state toxicologist testified during the trial that the tube she received with the blood sample are the tubes the state lab sends to police agencies.

"She did not observe anything unusual about it, or she would have noted it," Bredeweg said.

The state law that applies in this case is specific to testing blood for alcohol, Bredeweg said, and she acknowledged that she doesn't know the affect on methamphetamine.

"That will have to be a question for the toxicology lab," she said.

Judge Korsmo replied, "Hopefully someone will ask the toxicology lab so we know the answer."

Bredeweg also noted that there was nothing to prevent Trusley's defense attorney from raising that issue during the trial, if it had been an issue.

She then quickly said that the charging documents clearly showed a person can be convicted of vehicular assault if they cause substantial bodily injury to another when driving a car recklessly or under the influence of drugs.

Gasch contended that an improperly placed comma meant the information wasn't clear to Trusley.

Bredeweg said the information was sufficient, Trusley "clearly was aware of what was going on in the case" and presented a full defense at the trial, including having an expert witness testify in his defense.

The last argument centered around the jury waiver, which Trusley signed, acknowledging that he was waiving his right to have a jury.

Bredeweg said a judge also went over the waiver with Trusley in court, asking if he understood it and if it was his choice.

Gasch countered that the judge didn't follow up to ensure Trusley was fully informed about what it means to waive a jury trial.

She said the judge should have told Trusley that a 12-member jury has to make an unanimous decision to convict him, vs. one judge's opinion.

The Court of Appeals could issue a ruling in two to six months.

At the time of the crash, Trusley was on a special Drug Offender Sentencing Alternative for a previous conviction that shortened his jail time and required him to undergo drug treatment.

He received a 30-month sentence for the DOSA violation, which is being served before he begins his time for vehicular assault.

Trusley is at Coyote Ridge Corrections Center in Connell.

-- Paula Horton: 509-582-1556; phorton@tricityherald.com

This story was originally published May 11, 2011 at 12:00 AM with the headline "Kennewick man wants vehicular assault conviction tossed."