WHITE RIVER JUNCTION - Questions about the role that marijuana use may have played during a fatal crash into the median of Interstate 91 in Norwich last September are likely to dominate the criminal case against the driver of the pickup truck involved.
Keith Cushman, 34, of Lebanon pleaded innocent to two felony counts of grossly negligent operation of a vehicle - one with a fatality resulting and the other with serious bodily injury resulting. Both counts carry a maximum potential penalty of 15 years in prison, if he were to be convicted.
Cushman, who grew up in White River Junction, was released from the courthouse on several pre-trial conditions, including one that read “you shall not have any detectable amount of alcohol, THC (the active ingredient in marijuana), or any other mood-altering substance in your breath or blood while driving.”
Cushman’s friend Theodore Haley, 37, was the rear seat passenger who was killed during the 4:30 a.m. crash when Cushman fell asleep and rapidly veered off the highway before plunging head-on into a rock ledge in the median.
The front seat passenger that night, Michelle Hayward, told Vermont State Police troopers that when she noticed Cushman had nodded off and turned the wheel she yelled and tried to wake him to no avail.
A medical examiner later determined that Haley, who was asleep in the backseat at the time, died of blunt force trauma from having been ejected when the pickup truck collided with the rock ledge. Haley ended up pinned underneath the rear axle of the truck.
Later, during a search of Haley’s backpack which was recovered at the scene, police found a pair of marijuana pipes, one metal and one glass, with partially burnt marijuana in them. The autopsy report on Haley’s death concluded that he had been smoking marijuana and that “usage probably occurred within 45 minutes to one hour prior to the crash.”
Hayward, who suffered serious facial lacerations in the crash and subsequently had to undergo several surgeries, told police that she’d had one beer earlier in the evening and had not done any drugs.
Cushman told investigators that he and Haley had finished at the landscaping-and-pressure-washing business they worked at around 1:30 a.m. that morning and had picked up Hayward shortly thereafter. The trio then “decided to drive around the backroads and talk” and “much of the conversation was regarding Hayward’s ex-husband and issues they were going through.”
Cushman recalled getting on the interstate about 4 a.m. and beginning to head south towards their homes about a half hour ahead of the crash.
The police search of the totaled pickup truck turned up a gram of marijuana in the glove compartment and a marijuana bud on the floor in front of the driver’s seat.
A forensic analysis of the truck’s airbag control computer revealed that Cushman was traveling about 74 mph in the seconds before he struck the ledge and that he never applied the brakes before impact.
Following Cushman’s arraignment Tuesday morning, Windsor County State’s Attorney David Cahill said that toxicology tests upon blood drawn from Cushman at the hospital in the hours after the crash indicated that he had “active THC” in his system. Cahill said that suggested that Cushman had been actively impaired to some extent by his marijuana use, as opposed to just having tested positive for having used it at some point in the past.
State troopers wrote in their reports that Cushman had admitted to having smoked approximately one “bowl” of marijuana more than 20 hours prior to the crash; however, when a trooper who was specially trained to recognize signs of drug impairment interviewed Cushman in his hospital bed, the trooper said that he observed indications that suggested to him that Cushman was high at the time of the crash.
Cushman’s case is drawing particular attention because it is the first prosecution of a fatal accident in which marijuana is alleged to have been a factor since Vermont’s Legislature passed a series of decriminalization measures last summer. One of the central arguments advanced by those who were against decriminalizing pot was that such a move might lead to more injuries and deaths on the state’s roadways.
State’s Attorney Cahill pointed out that the way the state has charged Cushman, using the gross negligent operation statute as opposed to the state’s existing DUI-Drugs law, means that prosecutors won’t have to definitively prove that “drugs caused this” but rather just that Cushman allegedly failed to use the kind of care while driving that a reasonable driver would have exhibited.
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