Charges Against Restaurant After Fatal Crash Dropped

Valley News Staff Writer
Saturday, December 09, 2017

Lebanon — Prosecutors did not pursue a criminal charge against the restaurant where a Hartland man had been drinking before he killed a woman while driving the wrong way on Interstate 89 because they didn’t believe they could prove that Peking Tokyo had overserved him.

Daniel Cowdrey told police he had been drinking at the downtown Lebanon restaurant before he caused the fatal crash in May 2016, but Grafton County Attorney Lara Saffo said that prosecutors would have had trouble proving to a jury that Peking Tokyo was solely responsible for Cowdrey’s intoxication.

A December 2016 indictment stated Peking Tokyo served Cowdrey two large “scorpion bowl” drinks, and that the restaurant should have “known that (he) would have become intoxicated after consuming the first scorpion bowl beverage.”

State law prohibits serving “an individual who is visibly intoxicated or who a reasonable and prudent person would know is intoxicated.”

The restaurant pleaded not guilty to a felony-level charge of prohibited sales in January, and prosecutors dropped it the next month. Saffo at the time told the Valley News that she couldn’t explain prosecutors’ decision while Cowdrey’s trial was pending.

Cowdrey, 40, pleaded guilty this week to negligent homicide and aggravated driving under the influence. A judge sentenced him to serve six to 12 years in state prison, with one year suspended on the condition that he remains of good behavior.

“We did not have sufficient evidence about how impaired he was/appeared when he received the second drink,” Saffo said in an email on Thursday. “From an evidentiary standpoint, we also could not prove how much alcohol was in each scorpion bowl.”

Authorities described a scorpion bowl as an alcoholic beverage made up of multiple liquors, and Saffo called it “not your average, run-of-the-mill drink.”

Cowdrey had a blood alcohol content of .26 after the 9 p.m. crash near Exit 20 that killed 34-year-old Rhode Island resident Ellynn Koelsh and broke her young son’s leg. Cowdrey’s BAC declined in additional tests to .19, .18 and .17, prosecutor Viktoria Kovalenko said during Cowdrey’s plea and sentencing hearing on Wednesday.

Based on those levels, Saffo said, Cowdrey may have had alcoholic beverages before he arrived at the restaurant or after he left.

The restaurant’s attorney, Mark Sisti, previously told the Valley News that he believed the restaurant and its staff acted professionally and said servers even shut Cowdrey off at one point.

On Friday, Sisti said the fact that prosecutors charged Peking Tokyo in the first place was “bizarre.”

“There were numerous problems with their case, including the fact that the employees at the restaurant acted appropriately and responsibly,” Sisti said in an email on Friday. “Cowdrey’s behavior was questionable before and after he was directed to leave the restaurant (and) where he got his alcohol and/or other intoxicants were not within the control of the restaurant.”

Employees served him two scorpion bowls. He didn’t finish the second one, Sisti said.

Servers picked up on red flags from the start, he said.

Cowdrey allegedly kept leaving the restaurant, going into the parking lot and coming back inside, Sisti said.

It wasn’t clear where Cowdrey received his “high BAC,” Sisti said.

Cowdrey was at Peking Tokyo that night with some of his co-workers, Kovalenko said at this week’s sentencing hearing. According to court documents, Cowdrey worked for a property maintenance company in Lebanon at the time of the crash.

Cowdrey or someone he was with allegedly told a restaurant employee that Cowdrey wouldn’t be driving that night, Sisti said.

Although the state dropped the charge against Peking Tokyo, the New Hampshire Liquor Commission’s Division of Enforcement and Licensing also investigated whether the restaurant overserved Cowdrey.

The commission has a lower burden of proof when examining such charges, Deputy Chief Scott Dunn said.

“We go from mere preponderance,” he said, versus the state’s burden, which is beyond a reasonable doubt.

The investigation has been closed and no action was taken by the commission, Dunn said.

Jordan Cuddemi can be reached at jcuddemi@vnews.com or 603-727-3248.