Special judge dismisses DUI case against man in 2011 traffic fatalityPublished 9:50am Thursday, September 6, 2012
A special judge appointed to hear a drunk driving case against an Ironton man involved in a 2011 traffic fatality has dismissed the charge against him.
Judge Richard Schisler, of Scioto County, made his ruling Friday in the case of Charles A. Allen, of 1894 County Road 103, Ironton, who was charged with one misdemeanor count of operating a motor vehicle while under the influence of drugs or alcohol.
Schisler was appointed to hear the Ironton Municipal Court case after Judge O. Clark Collins recused himself because he was familiar with the Schwab family.
In April 2011, the car Allen was driving collided with a car driven by Richard Schwab II as the cars were traveling toward each other on Lane Ridge off Porter Gap Road.
Schwab was killed; two of his children, who were passengers in Schwab’s vehicle, were injured, one seriously. The Ohio State Highway Patrol eventually concluded both Allen and Schwab were at fault in the accident because both were over the center line at the time of the crash.
After the accident, Assistant Lawrence County Prosecutor Brigham Anderson said he presented the case to the Lawrence County Grand Jury on two occasions and each time the grand jury chose not to indict Allen on more serious charges in the case; the grand jury instead chose to indict Allen only on the misdemeanor drunk driving charge.
J.T. Holt, Allen’s attorney, asked Schisler to suppress the results of a blood test performed on Allen after the accident because no one could identify the individual who actually drew the blood at the hospital.
Schisler said this was a key factor in his decision to grant Holt’s motion. Schisler said although Holt had made other points in his argument to suppress the blood test results, the others were moot given the nature of this one element of his argument.
“Trooper Phipps said that he was there when the blood was drawn, but that he did not know who drew it.” Schisler said in his decision. Stacey Dick, R.N. testified that she did not know who drew the blood.
Finally, Cassie Stapleton said that she could not recall whether or not she drew the blood, but she also said that when an investigator showed her a picture of the vial containing the blood, that the signature on it was not her signature,” Schisler continued in his decision. “The law is very clear that an alleged criminal defendant has the constitutional right to confront and cross-examine any witness who testifies against him. … Further, our own Court of Appeals has held that the failure of the state to call a phlebotomist who drew blood at trial deprived the defendant of his constitutional right to confront that witness.”
Holt said he was as satisfied with Schisler’s decision as he could be, given the circumstances.
“Everyone involved sincerely regrets that Mr. Schwab’s family has had to grieve and contend with this situation while the judicial process ran its course with this case,” Holt said. “But Mr. Allen is grateful that the court objectively applied the law that pertains to these kinds of cases.
“The only intent was to advocate for Mr. Allen’s rights. Mr. Allen is glad this case is over so he can continue with his life but the fact that a husband and father was lost and two children injured in this unfortunate and tragic accident is not lost on anyone.
Mr. Allen genuinely wishes the Schwab family the best under the circumstances they have had to endure.”
Anderson was contacted for comment on the story but was not immediately available.