BOWLING GREEN - A local judge is to decide whether a Rossford man convicted of driving drunk when he hit two bicyclists on State Rt. 65, killing one, can be retried on the charges.
In a motion filed in Wood County Common Pleas Court, attorneys for David O'Neill, 63, argue his 2006 convictions for operating a vehicle under the influence of alcohol, aggravated vehicular homicide, and aggravated vehicular assault were "vacated and dismissed" by Ohio's 6th District Court of Appeals.
They say it would be double jeopardy for O'Neill to be reindicted on the charges.
County Assistant Prosecutor Gwen Howe-Gebers argues that the double-jeopardy clause only prevents a defendant from being reprosecuted when his conviction is reversed for insufficient evidence. This was not a case of insufficient evidence, she said, but a matter of trial error.
"We failed to meet our burden," Ms. Howe-Gebers said.
On Feb. 29, the appellate court threw out results of a blood-alcohol test conducted after the fatal crash, saying prosecutors had not proved the blood-draw procedure used in O'Neill's case complied with state regulations.
Because the blood-alcohol test results should have been suppressed on that basis, the appeals court wrote, O'Neill's convictions for drunken driving, aggravated vehicular homicide, and aggravated vehicular assault "must be vacated."
"The Court of Appeals basically said the prosecutors didn't do their job in carrying their burden," said defense attorney Adrian Cimerman, who represents O'Neill.
"It's not my job to ask questions to establish that they complied with Department of Health regulations. It's the prosecutors' job, and they didn't do it," he said.
O'Neill, who had been sentenced to a total of 12 years in prison by Common Pleas Judge Alan Mayberry, is serving a four-year sentence for failure to stop after an accident.
He struck Dr. Stephen Snedden, 47, and George Haig, who at the time was 48, as the two Perrysburg men were cycling along State Rt. 65 just north of Five Point Road about 1:15 p.m. Jan. 15, 2006. Dr. Snedden was killed.
O'Neill continued driving and was stopped later by police at State Rts. 25 and 65 in Perrysburg.
Investigators said he had a blood-alcohol level of 0.214 percent at the time, which is about 2 1/2 times the legal limit.
Mr. Cimerman said he believes the four-year sentence his client is serving is in line with the average sentence first-time offenders receive for aggravated vehicular homicide.
But Ms. Howe-Gebers yesterday disagreed - just as she did when Mr. Cimerman raised the same argument before O'Neill was sentenced two years ago.
"The state does not agree that four years is adequate given the behavior of the defendant and the lives that were affected by his actions," she said.
Judge Mayberry plans to hear oral arguments on the legal debate May 9.
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