Jury acquits driver on appeal in snowmachine traffic death

The jury overturned a 2006 verdict that O'Brien was responsible for 2003 accident that killed 30-year-old Calvin Toal of Wasilla.

According to Alaska State Troopers the accident happened just before 6 p.m. on Jan. 6, 2003. Toal was riding his yellow 1996 Ski-Doo southbound next to the northbound lane of the Parks Highway near Big Lake Road.

O'Brien, then 34, was northbound in a 1987 Mitsubishi pickup when he swerved and hit Toal's snowmachine head-on. Toal was later pronounced dead at Valley Hospital.

O'Brien was charged with driving while his license was suspended and criminally negligent homicide.

After a jury convicted him in 2006 he was sentenced to three years in jail with two years suspended and six months more for the license violation, according to a January 2007 Department of Law newsletter where the case was highlighted.

That sentence was stayed after the conviction, pending the result of an appeal, Palmer prosecutor Paul Roetman said.

The state Court of Appeals in June ruled that O'Brien should get a new trial after his attorney at the time, Lee Ann DeGrazia, successfully argued that details about the snowmachine driver -- that he was legally drunk that night -- had been kept out of the courtroom.

The Appeals Court decision said Toal's blood-alcohol level when he died was .092, just over the legal limit for driving.

The state initially argued that it didn't matter if Toal was intoxicated; O'Brien could have avoided the collision by staying in his lane.

But O'Brien's defense said the snowmachine was in the road, not on the shoulder.

"If the snowmachine driver was intoxicated, this would make it more likely that the snowmachine was being driven in the middle of the road," the Court of Appeals wrote in its opinion.

O'Brien's current attorney, Gary Soberay, said he was unable to speak about the case without permission from his client, whom he did not reach Tuesday. Attempts to reach O'Brien at several Anchorage numbers Tuesday were unsuccessful.

Roetman said the case didn't hinge on whether the snowmachiner had been drinking. In court, he argued that O'Brien was at fault because he was unable to see the road.

O'Brien told police after the accident that his windshield defroster wasn't working and he periodically had to scrape the inside of the windshield in order to see.

Roetman said O'Brien at one point said he thought the accident had occurred in the middle of the road when it had happened on the shoulder, "which strongly suggested not only couldn't he see well enough (to avoid the accident) but he also couldn't see well enough to know where he was in the road."

But Roetman said Bob Butcher, a former police officer and professional traffic accident reconstruction consultant, said another factor could have been at hand: the highway near Big Lake Road is rutted and O'Brien may have lost control and been unable to avoid the collision.

Find Rindi White online at adn.com/contact/rwhite or call her in Wasilla 907-352-6709.