4/3/2014 7:43:00 AM Driver who killed 2 gets 10 months; lawyer argues blood test was illegal
Matt Hinshaw/The Daily Courier, file
A member of the Chino Valley Police Department Accident Reconstruction Team inspects the scene of a double-fatal car wreck on Highway 89 just south of Chino Valley June 7, 2011.
PRESCOTT, Arizona - Isaac Paul Browning, who in June 2011 was behind the wheel of a truck that crossed the center line of Highway 89 and ran head-on into an SUV, killing a man and woman, was sentenced on Tuesday to 10 months in the county jail and seven years' probation.
The victims were Nick Davirro, 91, and his wife Nona, 81, of Chino Valley. Both vehicles rolled on impact, and the Davirros were killed.
Browning, 21, from Prescott, was flown to Flagstaff Medical Center. An officer who spoke to Browning at the hospital said Browning told him he swerved to avoid an object on the roadway, but investigators were unable to find anything that might have been on the pavement prior to the accident.
A grand jury indicted Browning on two counts of manslaughter, one count of criminal damage, and two counts of driving under the influence of alcohol or drugs.
Browning accepted a plea offer last month that was very similar to the original charges, only one of the DUI charges was dropped.
Browning had a blood test after the collision which indicated both marijuana and oxycodone use, but attorney John Napper argued that the tests were done improperly, and that police didn't have the right to take Browning's blood because they had no probable cause and no warrant.
As evidence of the lack of probable cause, Napper quoted a Daily Courier story in which then-CVPD Commander Mark Garcia said the police did not believe alcohol or drugs were involved in the crash.
Napper contended that, if the case went to trial, the court would have to exclude the evidence of drug use because it was obtained in violation of Browning's Fourth Amendment rights.
"This case will be nearly impossible to prove absent the blood results," Napper argued in a court document.
That led to a situation in which the prosecution could either have gone to trial and taken the chance that Superior Court Judge Tina Ainley would have excluded the evidence of drug and alcohol impairment, or could offer a plea with the stipulation that punishment would be substantially lower than in similar cases in which the impairment was not questioned.
Deputy County Attorney Cynthia Spitler took the latter option, although she said in court, "I wish I could ask for more for punishment."
On Tuesday, the courtroom was packed with Browning's supporters. Noting that Browning had entered treatment for oxycodone addiction, which began with a prescription after an accident in 2010, Napper said, "Once he got into the treatment, he began to reach out to the community and the community is reaching back. That's why all these people are here."
Browning, whom Napper said never intended to shirk responsibility for the crash, tearfully told the victim's family members, "If I could sacrifice myself for them, I would. Nothing I can say will change what I did or bring them back, but I want you to know that my heart will always be heavy for them. I am so sorry for your loss."
"When two people lose their lives, the punishment in this county... would generally include a term of imprisonment," Ainley said, but with the "legal issues" surrounding the case, she said the victims' families would be better served by giving them closure rather than a protracted court battle.
Despite the evidentiary problems, the plea "couldn't be without a punishment component" of some kind, Ainley said, so she imposed 10 months in the county jail.
That will be followed by seven years of intensive probation, "which is essentially house arrest," Ainley said, and 400 hours of community service.