A major piece of evidence in a wrong-way DUI crash that killed two CNU students could be thrown out.
Jesse Leon Evans, 34, was charged with two counts involuntary manslaughter, three counts of maiming by DUI and having two DUIs in five years following the crash in December.
Evans' lawyers and prosecuting attorneys are up in arms over the timing of Evans' DUI arrest.
Even if Evans is not charged with DUI, it is only one piece of evidence in the case against him, but the development has led to a delay in bringing the case to trial.
"I don't like the fact my client is in jail," Ron Smith, Evans' lawyer said. "That trial should have been today."
Evans is accused of driving the wrong way on Interstate 64, slamming into a car carrying five individuals, two of whom were killed, Sierra Smith and her roommate Kim Brin.
"There was no arrest for DUI here," Smith said. "Evans was charged months, months later with driving under the influence."
Evans was indicted in August by a grand jury and Smith argues Virginia State Police did not properly arrest Evans for DUI. The law states you must be charged with DUI within three hours of driving.
"Mr. Evans was not arrested within three hours of the offense, so the test doesn't come in," Smith said. "It's pretty basic. The driving under the influence law test does not come in."
The Circuit Judge agreed with Smith.
"The judge agreed with that, and the test is out," Smith said.
State Trooper B.L. Stokes testified she told Evans he was under arrest while he was in his car at the scene.
Evans was taken to the hospital and his blood alcohol level was .21, nearly three times the legal limit.
Smith said Stokes never did anything more to indicate Evans was under arrest, including handcuffs or telling him he wasn't allowed to leave.
The Hampton Commonwealth's Attorney Office says the arrest was indicated, understood and cuffs weren't put on because Evans was in the back of an ambulance going to the hospital.
The Commonwealth's Attorney is appealing the decision, but would not answer why Evans wasn't at least given a summons for the DUI immediately.
Smith also argued his client was not going the wrong way on I-64.
"I am not conceding that he was going the wrong way on 64 by any means," Smith said.
Individuals with the Commonwealth's Attorney Office would not discuss details of the case when contacted by WAVY.com, and neither would State Police.
The status hearing is set for Jan. 25.
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