Court rules in Las Vegas DUI fatality case

By Cy Ryan (contact)

Wednesday, Dec. 24, 2008 | 1:18 p.m.

CARSON CITY – The Nevada Supreme Court has ruled that scientific evidence and expert testimony does not have to be presented to a grand jury to show a man was drunk in causing a fatal accident in Las Vegas.

The court has overturned the decision of Clark County District Judge Kenneth C. Cory, who dismissed a felony drunk driving charge against Daniel Burcham, whose vehicle slammed into a car, killing the driver.

Burcham was traveling at 56 to 69 mph on April 30, 2006, when his truck hit the rear end of a vehicle driven by Dylan Whisman, who was stopped at a traffic light. Whisman’s car was pushed into a ditch and erupted into flames.

Blood alcohol tests taken about an hour after the accident showed Burcham’s level at 0.07, then an hour later it had dropped to 0.04. A person who has a blood alcohol level of 0.08 is considered drunk.

The Clark County Grand Jury indicted Burcham on felony drunk driving charges.

The court, in a decision written by Justice Mark Gibbons, said the two tests showed the blood alcohol level was dropping and that it could have therefore been 0.08 when he was driving.

Gibbons said the prosecution did not have to present specific scientific evidence and expert testimony to the grand jury to back up the suggestion that Burcham’s blood alcohol level was at 0.08 at the time of the accident.

“We conclude that the grand jury reasonably could have inferred that Burcham’s BAC (blood-alcohol concentration) was 0.08 or higher when he collided with Whisman’s car,” the court said.

Burcham had filed a writ saying the state has failed to establish probable cause that he was under the influence of alcohol at the time of the collision.

He also claimed the state was required to present expert testimony to the grand jury to prove the theory that his blood alcohol content had reached 0.08 at the time of the accident since the two measurements were below that.

Burcham admitted drinking one beer about 11 hours earlier. A Nevada Highway Patrol trooper testified Burcham’s eyes were bloodshot and watery and that his breath smelled of alcohol at the time of the accident.

Justice Michael Cherry, who wrote a partial dissent, said he agreed that the state had established there was sufficient evidence that Burcham was impaired and that he was incapable of driving safely.

But Cherry said he believed the state should have been required to present expert testimony to the grand jury to explain why the blood alcohol content of Burcham may have been at 0.08 at the time of the accident.

Agreeing with Cherry were justices Michael Douglas and Nancy Saitta.

The case was returned to the district court in Las Vegas for further proceedings.