Former AG Kane seeks dismissal of DUI case
Oct. 21—The drunken-driving case against former state Attorney General Kathleen G. Kane should be dismissed because prosecutors did not present sufficient evidence to show she smelled of alcohol or exhibited signs of intoxication, Kane's attorney argues in court papers.
Attorney Jason Mattioli also seeks to bar prosecutors from presenting certain evidence, including the results of a field sobriety test, video evidence that purportedly shows Kane drinking alcohol shortly before her arrest and testimony regarding her refusal to submit to a blood alcohol test.
Kane, 56, is awaiting trial in Lackawanna County Court for DUI and careless driving in connection with a minor two-car crash in Scranton on March 12. Prosecutors allege she was intoxicated when she struck a car driven by Oussama Medallel while making a turn off Moosic Street onto Meadow Avenue.
Kane denies she was drunk. She maintains the crash occurred because she made a wide turn to avoid a snowbank and slid on the ice after picking up her sister, who police acknowledge was highly intoxicated, from Cooper's Seafood House in Scranton.
The court motions come three months after a magisterial district judge found there was sufficient evidence to forward the case to Lackawanna County Court. Mattioli asked a county judge to overturn that ruling.
The motion to dismiss mirrors many of the arguments Mattioli raised at Kane's preliminary hearing in July. Testimony at the hearing revealed the arresting officer, Ryan Seprish, said he smelled a strong odor of alcohol coming from Kane's car, which Kane attributed to her sister, but did not smell any alcohol on her breath or person.
"Officers decided to conduct a field sobriety test with no evidence, no indicators that Kane was intoxicated besides the fact her vehicle and not her person smelled of alcohol," Mattioli says in the court papers. Their actions amounted to a "fishing expedition" so that they could conduct a field sobriety test, Mattioli says.
Mattioli also cites statements seven other law enforcement officers who encountered Kane following her arrest at the county's processing center gave to police. Of those, six said they did not smell alcohol or witness physical signs of intoxication.
The only person who did smell alcohol is Jason Gnall, a former co-worker of Kane's who works at the processing center and who drove her home after she was processed, Mattioli says. Gnall said he smelled alcohol on Kane's person, but not her breath, while they were in the car.
Should the motion to dismiss be denied, Mattioli contends the results of the field sobriety test, conducted by Officer Jeffrey Vaughn, should be suppressed because Vaughn violated several established protocols in administering the test.
Mattioli also questions whether Vaughn will be able to testify because he has agreed to plead guilty to federal charges for taking payment for extra-duty shifts he never worked at public housing complexes in the city. Vaughn was suspended after his arrest. Information on his current status could not be immediately obtained Thursday.
Kane's refusal to submit to a blood test also should be barred because Seprish did not advise her of the legal consequences if she refused, which is required, Mattioli said.
Regarding the video evidence obtained from Cooper's, Mattioli maintains it should be barred because prosecutors are utilizing an altered and enhanced video to pinpoint Kane. He argues prosecutors will not be able to authenticate that still photos taken from the video accurately reflect what happened.
"There is nothing to show that the enhanced and/or altered video and/or still photograph from the video have not been tampered with," Mattioli says.
The district attorney's office will have an opportunity to respond to the motions. A judge will rule on the matters at a later date.
Contact the writer: tbesecker@timesshamrock.com; 570-348-9137; @tmbeseckerTT on Twitter.
