An attempt to get Joel Taplin released on a technicality failed Monday.
In a Ketchikan courtroom, defense attorney Louis Menendez waited for the right moment to make his bid for acquittal in the drunken-driving manslaughter case.
He waited until the jury was dismissed and prosecutor Rick Svobodny assured the court he would rest his case first thing this morning without calling further witnesses.
Then Menendez moved for acquittal.
``It is our opinion that the state has not proved recklessness,'' he said.
``The only evidence at the scene that my client was drinking comes from (police) officers whose testimony is disjointed. There is an abundance of witnesses that my client was not (drunk),'' Menendez said.
The defense attorney referred to the testimony earlier Monday from Eileen Hunter, a Tabby's bartender, and her friend, Julie Haas, also an experienced bartender.
Hunter and Haas talked to Taplin at Tabby's over a two-hour-plus period before the fatal July 21 incident. Hunter testified she served Taplin four drinks, but ``he appeared in pretty good shape.''
Haas said Taplin was ``feeling good, feeling assertive,'' particularly when he tried to kiss her and she rebuffed him. But she did not judge him intoxicated.
Continuing with his argument for acquittal, Menendez said, ``there is no evidence in front of the jury except that Mr. Carlson was hit by my client (Taplin).''
Taplin is accused of causing Auke Bay resident Harry Richard Carlson's death by recklessly running his car into him July 21 on Back Loop Road. While earlier reports described Carlson as dying July 22, a medical witness Monday said the crash broke his neck, causing his death the day of the incident.
In court Monday, Menendez argued that evidence Taplin drove with a blood-alcohol level of 0.142 percent, above the legal limit, should not be admitted. He said Svobodny failed to enter into evidence certification of the machine used to make the breath test.
Because the machine needed formal certification, ``the jury is considering junk evidence,'' Menendez said.
Svobodny told the judge he had a certificate for the breath test machine, but felt it would confuse the jury.
The prosecutor also said he had presented sufficient evidence Taplin was reckless, a finding needed for a manslaughter conviction. The evidence included the blood-alcohol level, Taplin's driving off the main path of the road and his use of an unsafe car.
Collins today ruled the breath test results would be allowed as evidence.
``As to the motion for judgment of acquittal,'' Collins said, ``there is potentially sufficient evidence to sustain a conviction, and that issue should be decided by a jury in this case. So that motion is denied.''
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