By Darrell Todd Maurina
Curry County jurors will be asked this week to determine if Harry L. Downey, 70, of Melrose, is responsible for the 2001 death of Anna Beth Austin, the secretary for Curry County Manager Geneva Cooper.
The key question, prosecutors and defense attorneys agree, is whether Downey was intoxicated at the time of the crash or if his performance on field sobriety tests was due to medical problems.
Austin was riding in a pickup truck being driven by her husband north from Melrose when Downey’s pickup crossed the center line and hit the Austin vehicle on July 13, 2001.
Prosecutor Thomas Rutledge of Carlsbad said jurors will need to evaluate conflicting testimony about Downey’s blood alcohol level at the time of the crash.
“Make no mistake, that is one of the major issues here,” Rutledge said. “That’s the key charge: Was he under the influence of alcohol at the time the accident occurred?”
Rutledge said the first officers on the scene didn’t detect a smell of alcohol on Downey’s breath.
“After it had been several hours, the officers decided they needed to do a field sobriety test,” Rutledge said. “They did a field sobriety test and he was arrested, but they waited six hours to draw a blood alcohol sample. At 1 a.m., the blood alcohol test was .04, which is well within the legal limit.”
Rutledge said he would introduce testimony by several people at the scene who said they saw signs Downey was intoxicated, and others will testify that if Downey had a .04 blood alcohol level six hours later, he must have been over the .08 legal limit at the time of the crash.
Downey’s attorney, Hal Grieg, asked the jury to consider that Downey has a number of medical conditions.
“Here is my client, a diabetic who has not been allowed to eat. … They rolled him out and had him do all these physical tests with all his physical problems,” Grieg said. “Harry Downey couldn’t do these tests today standing here on this carpet.”
“Our position is that my client, Harry Downey, had some mud and water splashed on his windshield and he lost control,” Grieg said. “The problem is we’ve got some people saying they smelled something, it may have been alcohol, and other people who are trained to recognize alcohol saying they smelled nothing.”
Grieg also told jurors they should not make decisions based on sympathy for the Austin family, and noted that Anna Beth Austin’s husband, Dorman Ray Austin, has a separate wrongful death lawsuit pending against Downey and his farm corporation. The standard of proof in the civil case is lower than the “beyond a reasonable doubt” standard required to convict a criminal defendant, so even if Downey is found innocent in the criminal case, he can still be found liable for wrongful death.
The criminal case is scheduled to continue until Friday, according to the docket for District Judge Stephen Quinn.