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Lowe seeks dismissal of charge in DUI case

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Posted on September 24, 2009 |
By Andy Kirkaldy



MIDDLEBURY — The attorney for recently resigned Vergennes police chief Mike Lowe filed a Sept. 16 motion at Addison District Court seeking dismissal of the charges against Lowe for driving under the influence of prescription drugs. Those charges stem from the June 7 low-speed accident in Vergennes in which a police cruiser driven by Lowe struck a parked car.

Lowe pleaded innocent to that charge in Aug. 10. He also pleaded innocent on Aug. 24 to charges of unlawful possession of a prescription drug; two counts of obtaining prescription drugs by fraud or deceit; embezzlement because he “fraudulently converted to his own use” a handgun that had been seized as evidence; and neglect of duty by failing to return the handgun to its owner. Lowe resigned his post earlier this month, citing ongoing health problems.

On Sept. 16 Lowe’s attorney, Richard Goldsborough of South Burlington, sought to have the DUI charges thrown out “because the State will be unable to prove beyond a reasonable doubt that the Defendant was under the influence of a medication other than alcohol ‘to a degree which render(ed) (Lowe) incapable of driving safely.’”

Lowe’s blood-alcohol content tested at 0.00 percent after the accident, but Vermont State Police allege he failed sobriety tests administered by a trooper at roadside and later at Porter Hospital by a Drug Recognition Expert (DRE). A toxicology test allegedly showed anti-depressant, anti-psychotic, and potentially addictive anti-pain pills in his system. Lowe was treated this summer in Florida for addiction to prescription drugs, Goldsborough said at the Aug. 10 arraignment.

Goldsborough appears to be attacking the science of DRE technology in both his filings. His Sept. 16 motion acknowledges that, “the State has produced a toxicology report which establishes the medications were present in the Defendant’s blood at the time he submitted to the blood test (at Porter), (but) that report is not admissible without the support of an expert witness qualified to offer its foundation.”

In an Aug. 24 filing, Goldsborough sought to have the testimony of the state police DRE Todd Ambroz excluded. In that motion Goldsborough wrote that he was “challenging the lack of a sufficient basis in science for drug recognition expert testimony whereupon the ‘science’ of recognition of drugs is not sufficiently reliable.”

As of Sept. 21, Assistant Attorney General Robert Menzel had replaced Assistant AG John Treadwell as the prosecutor on the second set of charges, while Special Assistant AG Stuart Schurr remains the prosecutor on the DUI case. The cases are running on separate but parallel tacks, Menzel said.

No response had been yet been filed to the Sept. 16 motion, but Schurr filed a lengthy Sept. 16 response to Goldsborough’s Aug. 24 motion challenging DRE science.

Schurr noted that “DRE protocol is a standardized and systematic method of examining a driving under the influence or driving under the influence of drugs suspect,” for which DRE officers take extensive “enhanced training.”

Schurr also notes that the conclusions made by Ambroz in the case were supported by the other witnesses on the June 7 scene, including a city patrolman, a city resident and the VSP trooper who responded initially. He also cited Lowe’s own words to the trooper, that “he should have waited a little longer” before driving after taking the prescription drugs.

Schurr also points to Ambroz’ history in 63 previous DRE cases, in which he said laboratories confirmed the officer’s conclusions in 43 out of 45 follow-ups, and states that “Researchers have demonstrated low error rates for the field sobriety tests and DREs.”

The next court date for Lowe and attorneys on both sides comes on Oct. 19 at 1 p.m., when a status conference has been scheduled.

While Lowe’s cases wind through the court system, former city police chief Ted Minall continues to pinch hit, and the city has moved on: The first advertisements seeking Lowe’s replacement appeared in mid-September.

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