PORTLAND, Maine — Once an acknowledged “poster child” for the perils of texting and driving, Kristina Lowe and her attorneys want to make sure no trial judge or jury sees statements she had made previously admitting to doing so.
Police have alleged that Lowe was behind the wheel, under the influence of alcohol and texting in the moments before a Jan. 7, 2012, crash that killed passengers Rebecca Mason, 16, of West Paris and Logan Dam, 19, of Norway.
But on Monday, Lowe’s attorney, James Howaniec, told the Maine Supreme Judicial Court that there’s little admissible evidence that his client was either drunk or texting at the time of the crash, an assertion that could undercut prosecutors’ case against her.
That argument attracted an angry response from the mother of one of the victims. While Howaniec was explaining his position to a group of reporters outside the Cumberland County courthouse Monday in Portland, Deborah Sande, mother of Dam, spoke up on her way out of the building.
“These kids need to take responsibility for their actions,” she said. “Everybody else’s life gets to go on, while ours falls apart. She didn’t mean to do it, but she needs to take responsibility for her actions.”
Lowe was in the courtroom for the Monday hearing, but did not speak to reporters immediately after the arguments.
Lowe, who was 19 at the time of the crash, faces two counts of Class A manslaughter, two counts of Class B aggravated operating under the influence, two counts of Class C driving to endanger and one count of leaving the scene of a motor vehicle accident resulting in death.
The state’s highest court heard oral arguments Monday afternoon in prosecutors’ appeal of a lower court decision to suppress statements Lowe made to an investigating officer while in the hospital. In those statements, Lowe of West Paris told the officer she was texting at the time of the incident.
In December, active retired Justice Robert W. Clifford ruled that the first portion of an approximately half-hour interview with police will be admissible in Lowe’s case, that she was lucid and aware despite being on heavy pain medications because of an array of serious injuries including a broken back and nose. However, Clifford ruled that when the investigator left the room and returned with news that the passengers had died — and that Lowe was facing possible manslaughter charges — the police officer should have reiterated that Lowe did not have to answer questions.
Howaniec said Monday that Clifford’s ruling should be upheld not only because Lowe was not advised of her rights not to answer the questions without an attorney present, but also because incriminating statements she made during the second portion of the interview turned out to be inaccurate.
“She made statements that were not only against her interests, but she made statements that were incorrectly against her interests,” Howaniec told the justices. “She said she was texting, when the forensic evidence showed she wasn’t even close to texting at the time.”
Howaniec said police reviews of cellphone activity from the night in question determined that Lowe did not send any phone calls or text messages at the time of the incident, and the attorney added that although her .04 blood alcohol level was illegal for a minor, it is lower than the .08 threshold to prosecute on drunk driving charges and is too low to be responsible for the crash.
“For a manslaughter charge, you really need to have egregious behavior,” Howaniec said. “Without these statements, we believe the state’s case is severely impaired. There’s a lot of things she said that were contrary to the evidence.”
Howaniec has argued that icy road conditions are the primary cause of the crash.
Prosecutors differ. Oxford County Assistant District Attorney Richard Beauchesne argued before the court that, because Lowe was lucid and had been informed before the break in the interview that she could stop talking to the investigator at any point, her statements from the second part of the session should be allowed at trial.
Beauchesne argued that even though records show that Lowe did not send any text messages at the time of the crash, they do not prove she wasn’t reading texts that she had received. Combined with her blood alcohol level, he said, prosecutors have enough evidence for manslaughter charges. Beauchesne acknowledged to reporters outside the courthouse Monday that Lowe early on was made out to be a “poster child” in the campaign against texting and driving, but said the case is more complicated than that.
“From our point as prosecutors, it was never the sole highlight that, frankly, the press made it out to be,” he said.