Letter: Prosecutor gives her thoughts on recent case
Michelle Durham is one of the most unbelievably strong women I know and I am honored to call her a friend. She lost her husband in a horrific car crash and is working tirelessly to help her child recover from life threatening injuries as a result of that crash. One of the most difficult things I have had to do since becoming Commonwealth’s Attorney was to look her in the eyes and tell her that the evidence just wasn’t there.
In recent weeks, I have received many inquiries into the facts surrounding the crash that resulted in the death of a dear man in our community, Troy Durham, and the resulting criminal case. The inquiries have grown in number such that I am sharing a brief summary here today. These are the facts:
1. There is no evidence from a "black box" data recording device or any witnesses of the speed of travel, steering, braking, etc., of the defendant immediately before the crash. Therefore, we had no evidence of erratic driving, excessive speed or any other type of criminal behavior on the part of the defendant prior to the crash occurring.
2. The defendant was transported to a hospital for treatment of his injuries. The hospital’s preliminary test revealed illegal substances present in the defendant’s urine. While at the hospital, shortly after the crash, a blood sample was also taken from the defendant.
3. The results of a urine screen cannot be used to prove that someone is driving while intoxicated or driving while under the influence of illegal drugs. The toxicology experts I spoke with explained that drugs show up in a person’s urine for days, sometimes weeks after the person has used them. An individual’s urine can test positive long after any impairment caused by the drug has ended. A prosecutor cannot use the results of a urine screen to prove that a person is under the influence at the time he was driving. We must use a blood test to prove what, if any, substance is in a person’s system at the time they are driving. The experts I spoke with told me that any illegal substances the defendant had used on the date of the crash would show up in the blood test.
4. The blood was sent from the hospital to the Virginia Department of Forensic Science to be analyzed.
5. The testing revealed that the defendant’s blood was free from any alcohol or illegal substances.
6. The forensic science experts concluded that there is no evidence that any illegal substances were actively impairing the defendant at the time of the crash.
7. Statements by the defendant that he last used drugs the week before were not refuted by the evidence.
For these reasons, reckless driving was the only legally sustainable charge. If there had been any evidence to suggest that the defendant was under the influence of drugs or alcohol at the time of the accident, he would have been prosecuted for manslaughter. When a family and community are affected by tragedy, emotions are high. However, as a prosecutor, I have to set aside that emotion and evaluate a case based on the law and evidence. I have an ethical obligation to only pursue charges for which there is a legal basis, and in this case, after receiving the blood test results and consulting with the experts, there was no evidence to support a manslaughter charge.
I know the community as a whole has been affected by the death of Mr. Durham and I hope that I have been able to address the concerns the community has had regarding the prosecution of this case. Although the criminal case is over, the loss the family has had to endure is immeasurable and will impact them for the rest of their lives. I know that we will all continue to give our strength, energy and support to Michelle, Montanna and the entire family as they work through the healing process.
Holly B. Smith
Gloucester County, Va.