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Saturday, May 17th, 2008

Expert: more in blood than alcohol, cocaine

Schwieterman's defense motions heard in fatality case

By Margie Wuebker

Nicholas Schwieterman, left, confers with Dayton attorneys Scott Calaway, center. . .

An expert witness testified Friday afternoon that a Chickasaw man charged in connection with a quadruple fatal accident had more than alcohol in his blood and cocaine metabolites in his urine when he allegedly drove through a stop sign near St. Sebastian on March 15.
Dr. Michael G. Bissell, director of the toxicology lab at The Ohio State University Medical Center in Columbus, testified a urine scan from Nicholas Schwieterman, 22, 90 S. Maple St., performed in the wake of the fatal accident also showed the presence of marijuana in a concentration of 48 nanograms.
Bissell, one of numerous witnesses called during a day-long motion hearing in Mercer County Common Pleas Court, stated Schwieterman tested positive for cocaine use at a level of 7,990 nanograms, more than 53 times the 150 nanogram level at which a person is considered impaired. Additional testing pegged his blood-alcohol content at 0.134, nearly double the 0.08 legal limit.
The motion hearing was held at the request of Schwieterman's attorneys, Scott Calaway and Marc T. Ross of Dayton, who want to suppress results of blood and urine test.
Law enforcement and medical personnel were called to the stand to testify in front of a packed courtroom - Schwieterman's family and friends on one side and parents, relatives and friends of victims Jordan Moeller, Jordan Diller, Brad Roeckner and Jordan Goettemoeller on the other. Like an earlier appearance, the parents of the deceased teens held framed photographs of their sons throughout the lengthy court proceeding, lasting from 9:15 a.m. to 4:30 p.m. The hearing did not conclude and will continue at 1 p.m. May 23.
  Mercer County Sheriff's Lt. Martin Emerine and Deputy Doug Timmerman responded to questions from both sides regarding the accident scene, testifying that neither Schwieterman nor his friend Kyle Schmitmeyer, allegedly the passenger, were cooperative. Neither admitted to being the driver of a 1996 Pontiac Bonneville wedged between a steep ditch bank and a stout utility pole or even being in the car for that matter.
Ross inquired why Emerine thought the pair were involved in the crash and not merely bystanders.
"They had blood on their shirts and on their faces," the 161/2-year veteran said. "If they weren't in the car, where did all the blood come from?"
Brian Tippie, a passerby who called 911 at 2:51 a.m. to report an injury accident, reportedly told authorities he had seen the pair inside the Bonneville registered to Schwieterman's father, Bob.
After noting the men had an odor of alcohol about them and bloodshot eyes, Emerine said a decision was made to arrest both men for operating a vehicle under the influence of alcohol or drugs of abuse since it was impossible at the time to definitely identify the driver.
"You cannot arrest two people for driving the same car," Ross challenged. "It's an oxymoron."
The attorney suggested the bloodshot eyes could have come from being tired, having allergies or being hurt. Emerine admitted with a shrug of his shoulders that such excuses were plausible but once more cited the recognizable odor of alcohol and Schwieterman's slurred speech.
The motion also alleges Emerine conducted a warrantless search when he removed Schwieterman's operator's license from a wallet found on the driver's seat.
Ross and Calaway also claim that personnel at Mercer County Community Hospital in Coldwater were not properly qualified to perform forensic draws and Schwieterman did not give an intelligent and voluntary waiver of his Miranda rights given the circumstances and his condition.
Fox brought medical lab technician Jayne Yoder and medical technologist Rosann Rable to the witness stand to describe in great detail the roles they played in collecting samples, processing associated paperwork, and establishing a chain of custody. The Dayton legal team contends an unbroken legal chain of custody was not maintained from the point the blood and urine samples were taken to the time they were tested to prevent tampering, contamination substitution or misidentification.
Sheriff's Detective Lance Crum took custody of the specimens and placed them in his car. Ross asked pointed questions about Crum's decision to stop at his home to check on his boys enroute to the office. The attorney asked repeatedly whether there had been an attempt to refrigerate the sealed boxes or whether Schwieterman had been permitted to call his parents, with the officer responding negatively. Crum also said he turned down the young man's request to wait for his parents to arrive prior to testing, with the officer explaining time was of the essence.
The attorneys contend blood and urine samples were not drawn within a three-hour window with authorities pegging the time of the accident as 2:45 a.m. - the same time Midwest Electric reported a power disruption in the area. The last contact emanating from the car carrying the four victims was 2:41 a.m. when Diller reportedly sent a text message to his girlfriend.
Ross and Calaway contend the samples were not drawn within three hours of the alleged offense and their client did not give "valid" consent. Blood was drawn from both suspects at 5:10 a.m. with Schwieterman's urine test coming at 6:15 a.m.
Among the items to be addressed next week are: a request to suppress oral or written statements/admissions made by the defendant; reducing the $2 million bond to allow his family to pay increased costs including attorney, expert and scientific fees; and resetting the tentative June 9 trial date to allow counsel more time to investigate all allegations, seek independent testing and wade through more than 500 pages of discovery produced by the state.
Schwieterman faces 16 charges including four counts of involuntary manslaughter and eight counts of aggravated vehicular homicide alleging the traffic deaths came as a proximate cause of using alcohol and drugs. Other charges include possession of drugs, trafficking in drugs and two counts of operating a vehicle under the influence.
He remains under house arrest after his father posted $200,000 or 10 percent of his $2 million bond.
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