LIVINGSTON, LA (WAFB) - The trial involving the death of a 6-year-old boy resumed Tuesday morning with testimony from an expert on blood alcohol content (BAC), but then recessed until further notice.
The negligent homicide trial of Brad Welch, 33, of Watson, in the death of Tyler Myers continued with BAC expert Jimmy Barnhill taking the stand. He told the judge he estimates Welch's BAC was between .09 percent and .12 percent at the time Myers was run over.
"It's our opinion he had more than one drink and we think our expert confirmed that based on simple scientific evidence," said prosecutor Greg Murphy. "He told the court that's why we believe he had more than one drink."
The trial is recessed until further notice so defense has time to present its own expert witness on blood alcohol content. This is a bench trial, which mean Welch has decided to leave his fate in the hands of a judge instead of a jury.
Authorities said Welch told them he had a glass of wine earlier that day. Investigators said Welch was on his cell phone when he turned his truck into his driveway and hit Myers.
"The case is not over yet, but again and I said it in open court so it's a public record, the reason that we're here today is not because he was on a cell phone. It's because we believe he was impaired at the time of the incident, above the legal limit. That's why we're prosecuting," Murphy added.
Barnhill stated the alcohol from one glass of wine should have been out of Welch's system in an hour. The crash happened around 6:20 p.m. Welch told officers he had the one glass of wine between 4:45-5:15 p.m.
Defense attorney Michael Thiel said three BAC tests were conducted because the proper paperwork had not been obtained when investigators administered the first blood draw. The results of the three blood-alcohol levels taken after the accident were .054, .06 and .03.
Thiel added because his client's BAC was below the legal limit of .08, it isn't a factor in this trial. The prosecution argues any time there is more than .05 percent BAC, there are effects on the body, such as blurred vision.
"We don't prosecute people for talking on a cell phone. That's not why we're here. But, if you couple that with the fact we believe he was over the legal limit, then certainly that may have played a small part in it. But, that's not why we're here. We're here because of the alcohol," Murphy explained.
Thiel requested an acquittal, arguing the prosecution did not prove negligent homicide and that Barnhill's testimony contradicted some of the state's previous witnesses. He said prosecutors have not proven the BAC contributed to the boy's death. Judge Bob Morrison denied Thiel's request for acquittal.
"Now we have to put on a defense; I think his reasoning, and I don't want to speak for the judge, but he believed the state, through their expert witness, was able to at least create a rebuttable presumption," said Thiel. "And now, we have to put on evidence to rebut, basically. That's the procedure that's set up and while I'm disappointed, I fully understand it. I understand how the process works."
He argued Barnhill was speaking in general terms and not specific to Welch's case because Barnhill was not there. The previous testimony Thiel referred to was from two officers who testified earlier in the trial that they saw no signs of impairment during a four-hour time period.
"The motion that I made was basically if you take everything in a light most favorable to the state, they still didn't prove their case beyond a reasonable doubt. State goes first in the prosecution and they have to at least present enough evidence to rise to the level of rebuttable evidence, proving their allegations beyond a reasonable doubt. The judge found they did that," Thiel explained.
The defense said the expert witness it will call to rebut Barnhill's testimony is a college professor. Thiel added he just received Barnhill's report Tuesday, but the prosecution said he got it on February 11.
"I have a witness that I expect to call to basically contradict some of Mr. Barnhill's testimony. His name is Dr. George, out of Tulane University, and I may have some other witnesses we will call," Thiel added.
The boy's parents, Jamie and Erika Myers, arrived at the courthouse wearing yellow, his favorite color. About half of the packed courtroom was in yellow to show support for the Myers family. There was standing room only.
Prosecutors are trying to prove Welch was negligent when he hit Myers as the boy rode a scooter in Welch's driveway. The incident happened in September 2012 on Rue de Fleur in Watson.
The trial started last month, but was delayed because a witness wasn't available. Following opening statements on January 17, a detective testified about the information he took the night of the accident.