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Attorney argues against vehicular homicide charge

August 22, 2012
By DEANNE JOHNSON - Staff Writer ( , Morning Journal News

LISBON - The attorney for Michael Bair argued Tuesday that the vehicular homicide charge against Bair should be dismissed in Columbiana County Municipal Court, claiming the highway patrol did not have the authority to investigate the death of a driver because it occurred on private property off the side of the roadway.

David Mayfield, 35, Annesley Road, East Liverpool, was killed on March 13 by a dump truck overturning onto his Dodge Durango off the side of state Route 7. Bair, the driver of the dump truck, was hauling gravel for Sebastian Trucking Inc.

Assistant County Prosecutor Don Humphrey provided Judge Mark Frost his version of the events. Humphrey said the start of the accident occurred on the public highway although it may have ended up off the public right-of-way. He contended the dump truck Bair was driving was overloaded and found to have faulty brakes. Bair, he said, was unable to stop in time for another vehicle in front of him, who stopped in the southbound lane. The stopped vehicle was driven by Lindsey Francis of Rogers.

Bair "careened off that vehicle," Humphrey said, and swerved into the oncoming lane. Mayfield, who was northbound, saw the dump truck coming toward him and swerved to his right to avoid it, Humphrey continued. Bair continued left and the dump truck tipped over off the side of the roadway.

"To suggest this was somehow a calm and reasonable attempt to drive off the roadway is a tortured interpretation of the reality of these facts," Humphrey said.

Frost questioned if any of the attorneys could tell him how wide the right of way is for that section of Route 7, noting some roadways have right of ways 120 feet wide. Humphrey said the state was unprepared to prove the right of way at Tuesday's hearing.

Bair's attorney David D'Apolito, who is also a judge in Mahoning County, argued Bair had merely turned his vehicle off the roadway to bring his vehicle to a rest and he believes the dump truck tipped over 60 feet off the roadway, instead of the 47 feet suggested. He further claims new brakes had been installed and the brake adjustment issue was due to the accident and Bair attempting to stop.

"The defendant is nowhere near the roadway," D'Apolito said. "For some reason the decedent travels into the path of the truck. If he had traveled his lane, stayed in his lane as anyone would, there is no accident."

The defense attorneys also contended because it happened on private property, the statute regarding what constitutes negligence is a lessor standard.

Frost noted many of the points being brought up during the motion hearing were more factual issues for a jury to decide. He gave the attorneys until Sept. 10 if they would like to provide additional information about the jurisdictional issue about whether or not the highway patrol had the authority to investigate.

Specifically, the two motions were motions to dismiss and a motion to suppress evidence, both based primarily on the argument of jurisdiction. Humphrey argued both motions should be dismissed if Frost considered them at all because they were filed after the deadline.

Humphrey said he has provided Bair's attorneys with the coroner's report and blood records of Mayfield. The highway patrol is preparing a reconstruction report and Humphrey will subpoena the cell phone records from the time of the crash.

The jury trial is scheduled for Oct. 17. A civil lawsuit has also been filed.



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