Driver gets probation for fatal Norwich crash after state can’t prove he was high on pot

  • Keith Cushman, left, pleads guilty to two amended misdemeanor counts of negligent driving for the Sept. 3, 2018, crash that killed Theodore Haley III, 37, and injured Michelle Hayward, both of Hartford, in Windsor Superior Court in White River Junction, Vt., on Tuesday, May 14, 2019. Cushman received a suspended prison sentence, 5 years of probation and 400 hours of community service. (Valley News - Joseph Ressler) Copyright Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com.

  • Theodore Haley II listens as he waits to make a statement arguing against a plea agreement for Keith Cushman in Windsor Superior Court in White River Junction, Vt., on Tuesday, May 14, 2019. Cushman received a suspended prison sentence and 5 years of probation for negligent driving in the Sept. 3, 2018, crash that killed Haley's son, Theodore Haley III. (Valley News - Joseph Ressler) Copyright Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com.

  • Windsor County State’s Attorney David Cahill speaks to members of the media after the plea and sentencing hearing for Keith Cushman in Windsor Superior Court in White River Junction, Vt., on Tuesday, May 14, 2019. Cahill, the prosecutor in the case, expressed the difficulty of proving a felony DUI-marijuana case against Cushman, because Vermont does not have an objective roadside test for determining impairment by any substances other than alcohol. (Valley News - Joseph Ressler) Copyright Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com.

Valley News Staff Writer
Published: 5/14/2019 10:12:03 PM

WHITE RIVER JUNCTION — A 34-year-old Lebanon man on Tuesday acknowledged driving his truck into ledges along Interstate 91 in Norwich after consuming marijuana, killing one of his passengers and injuring another.

But he won’t serve any prison time, drawing the ire of relatives of one of his victims, who called for a better test to determine whether motorists are impaired by marijuana.

Under a plea agreement in Windsor Superior Court, Keith Cushman pleaded guilty to two amended misdemeanor counts of negligent driving for the Sept. 3 crash that killed Theodore Haley III, 37, and injured Michelle Hayward, both of Hartford. Cushman received a suspended prison sentence and five years of probation.

By entering his pleas to those charges, Cushman acknowledged that he was speeding, drove while fatigued, failed to ensure Haley and Hayward were wearing seatbelts, and had consumed marijuana before or while driving, according to Judge Timothy Tomasi’s reading of the charges.

However, Windsor County State’s Attorney David Cahill said the state would have had trouble proving a felony DUI-marijuana case against Cushman based on the evidence at hand. That’s because Vermont doesn’t have an objective roadside test that determines whether a person is impaired by a substance other than alcohol, much like the well-known Breathalyzer.

The probationary sentence didn’t sit well with Haley’s family, who spoke in court on Tuesday.

“His life was worth more than that,” Theodore Haley II, Haley’s father, told Tomasi while asking him to deny the plea agreement.

But Tomasi accepted it with one change: The deal called for four years of probation and the judge increased it to five. In accepting the deal, Tomasi said he took into account the limitations of the state’s case, given the evidence.

“If he doesn’t comply, he will be going to jail,” Tomasi told Haley’s family.

Cushman, who the judge noted had a “somewhat extensive” criminal record, expressed remorse for his actions on Tuesday.

“I want to apologize to the family for everything that has happened. ... He was my friend,” Cushman said of the younger Haley, who went by TR and had attended Hartford High School and did odd jobs for people in the Upper Valley.

Cushman was represented by attorney Robert Lees.

Cahill turned and faced the Haley family during the hearing and explained the holes in prosecuting a case where someone may have been impaired by a substance other than alcohol, but for which there is no objective tool to test and prove intoxication.

Currently, the state pairs an evaluation conducted by a drug recognition expert, or DRE, who tests for impairment from substances like marijuana, with a toxicology report. But the state didn’t even have both of those pieces in this case because a DRE could only partially evaluate Cushman because of his injuries after the crash, Cahill said.

An official had drawn Cushman’s blood after the crash and the sample showed Cushman had THC in his system, but that didn’t provide enough information to prosecute, Cahill explained.

“Given the current investigative tools ... the case is grossly compromised,” Cahill said. Therefore, the state was left with a case where someone was speeding, fatigued and drifted off the roadway, “not one that is necessarily provable as a felony DUI-marijuana (case).”

Cushman’s formal sentence on each count was six months to two years, all suspended, for a total underlying sentence of one to four years. Cushman also must complete 400 hours of community service.

He will have his license suspended for at least a year, Cahill said. If and when he gets it back, he can’t have any detectable amounts of “mood-altering substances” in his blood or on his breath when driving, Cahill said.

Cushman had initially been charged with two felony counts, each punishable by up to 15 years in jail; the two misdemeanors came with maximum penalties of two years each.

Although he couldn’t complete his DRE examination at the time, Vermont State Police Trooper Jeremy Lyon concluded that Cushman was “not able to operate a motor vehicle safely,” according to Lyon’s affidavit in the case. Defense attorneys have questioned the reliability of DRE conclusions.

Cushman told police he had smoked marijuana “less than a day” prior to the crash, and that Haley and Hayward were smoking in the truck with the windows rolled up, according to the affidavit.

Cushman on Tuesday also pleaded guilty in a second motor vehicle crash case he had pending in the White River Junction courthouse. Not long after the fatal crash, Cushman hit a stop sign in Hartford and left the scene.

He pleaded guilty on Tuesday to careless or negligent motor vehicle operation and leaving the scene, both misdemeanors. The sentence for those charges was folded into the others.

After the hearing, Theodore Haley II and other family members spoke to reporters about the need for an objective roadside test for drivers who may be impaired by substances other than alcohol.

Haley called it “insane” that the state pushes to expand marijuana legalization without such a test in place. Gov. Phil Scott currently is pressing for a test in a tax-and-regulate bill in the Statehouse, as is Cahill, the prosecutor.

Cathi Haley said stronger evidence might have led to a more serious sentence following her stepson’s death.

“We want some sort of measure for DUI cases involving marijuana,” she said.

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




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