Lafe Kern told paramedic Tony Leeds that he’d taken a handful of Xanax prior to a two-vehicle collision south of Great Bend on Feb. 19, 2015. Leeds testified Wednesday in Barton County District Court at Kern’s preliminary hearing on four counts of aggravated battery while driving under the influence of drugs. At the conclusion of the hearing, Magistrate Judge Richard E. Burgess Jr. found probable cause that the alleged crimes had occurred, and Kern’s arraignment was scheduled for 9 a.m. Friday.
The preliminary hearing began back on Jan. 20 with the testimony of Heather Cash and her mother, Candace Lampe, who were both seriously injured in the head-on crash near Hart’s Corner, two miles south of Great Bend on U.S. 281. They described how they are still affected by their injuries. Kern and a child in the Tahoe driven by Cash were also injured that day.
Assistant County Attorney Douglas Matthews called more witnesses as the hearing resumed on Wednesday.
Leeds was a paramedic with the Great Bend Fire Department who responded to the accident and assumed care of Kern at the scene. Kern was able to identify himself and could respond to EMTs, Leeds said.
“He told me he had took some pills,” Leeds said. “He said he hadn’t slept for four days and he had taken some Xanax.” Leeds said he was with Kern for about 30 minutes. “He said he was an addict and wanted to get help.” During cross-examination by defense attorney Michael S. Holland II, Leeds added, “He just told me that he took a handful.”
Another witness was Mark McManaman, an EMT from Pratt, now retired. On Thursday morning, Feb. 19, 2015, McManaman was driving to Great Bend to have some radio equipment repaired. He testified that the Ford Explorer Kern was driving crossed the center line as it approached him and he barely avoided a collision. In his mirror, he saw the SUV hit the Tahoe behind him.
“I did a hard right turn towards the shoulder. I knew there was a vehicle behind me; I saw debris going up in the air or falling. I turned around and activated my emergency lights and called 911,” he said.
Great Bend EMTs arrived “within 3 minutes or so — maybe a little longer,” McManaman said, adding “a lady” put the children from the Tahoe in his vehicle. They had been secured in child seats and “their injuries were not severe,” he said.
Deputy Sheriff Jaimie Skeen testified that he found an empty prescription bottle belong to Kern on the road. Skeen talked to Kern at Great Bend Regional Hospital. “I asked if he would give me a blood sample and he said yes.”
“Did you tell him he was free to refuse?” Holland asked.
Skeen said he did not, but Kern had signed a consent form.
Carrie Hodges, a forensic toxicologist from the Kansas Bureau of Investigation, testified that the blood sample showed zero alcohol but did show four chemical compounds. The first was inactive THC, found in cannabis, which had metabolized and would no longer have an effect on the body, she said. (The test “simply shows exposure to THC at some time in the past.”)
The second chemical presence was alprazolam and the third was alpha-Hydroxyalprazolam, both available under the trade name Xanax. The fourth was 1,1-difluoroethane, or DFE, which can come from inhaling compressed air from a can, Hodges said. “DFE can be classified as a central nervous system depressant,” she said. Inhaling or “huffing” the compound may be done for a euphoric effect.
Under cross-examination from Holland, Hodges said the tests did not show the levels of any of the compounds or when or how the person came in contact with them.
“The DFE — it can also be a refrigerant?” he asked.
Hodges said it could.
“Since you don’t do a quantitative analysis, you don’t know if it was ingested?”
“We don’t have a quantitative law yet,” Hodges said. Unlike alcohol, where the law establishes legal levels for impairment, “there’s no level that says ‘at this level, you’re impaired.’”
Matthews asked if the tests are set at any level. “We have cut-off levels based on levels that ... are deemed significant,” she said. “It doesn’t necessarily mean the person is impaired at that level but we should take it on for further confirmatory testing.” DFE does not have a confirmatory level, she said.
Holland argued that the charges should be dismissed because the state had not produced evidence that driving under the influence of drugs was the cause of the accident. With no quantitative level of Xanax, under the State’s reasoning, he said, “everyone who gets in an accident (who has used a prescription drug) is guilty of DUI. ... Just because a drug is there doesn’t mean there is impairment.”
Holland suggested it was more likely that Kern fell asleep. “It’s tragic but it’s certainly not a criminal act.”
“He mentions lack of sleep and taking drugs that morning,” Matthews said. “There are definite signs of impairment.” As a result, four people were injured.
“I did hear sufficient evidence probable cause exists,” Burgess said. He mentioned the “handful of Xanax,” which would not be a dose in a prescription, he said.