ARSONS -The attorney for an Elkins woman facing two counts of child neglect resulting in death made a motion Tuesday to dismiss all charges against her in Tucker County Circuit Court.
April Miller, 29, of 914 S. Davis Ave., was indicted in February on one count of child neglect resulting in serious bodily injury, two counts of child neglect resulting in death, two counts of possession of a controlled substance and one count of permitting DUI.
The charges stem from an accident in Tucker County on Aug. 7, 2013. Joshua Lee Watson, 20, of Elkins, a 7-year-old boy and an 8-year-old girl, all from Elkins, were killed when the gold 1995 Honda Accord in which they were traveling went left of center for unknown reasons and was struck by a 2006 F-550 truck.
On Tuesday, Miller appeared with her attorney, Tim Prentice, who told the court the charges should never have been brought against Miller.
"This claim is nearly devoid of evidence to support the indictment," Prentice said. "To permit DUI, there has to be a DUI. There is no evidence, in my opinion, there was a DUI. Secondly, to be a DUI, you have to be impaired. The fact is, the toxicology reports the driver was not intoxicated at the time of the crash. There was a trace amount of cocaine metabolites in the body of the deceased driver - 0.04 mg. per liter."
Prentice said Miller should not be charged for child neglect because the children were restrained.
"If you look at the coroner's report, it shows there were marks caused by the seat belts," Prentice said. "It is not disputed the children were restrained."
Prentice conceded Miller might have smoked pot in Maryland.
"That was four or five hours before," Prentice said. "So what? That had nothing to do with the death of those children. I am not advocating smoking pot or anything else. It contributed in no way to the injury of that child or the death of those children."
Prentice said it is wrong to put Miller on trial when there is so little evidence to convict.
LaMora stressed there was cocaine in the driver's system at the time of the accident.
"We feel it did impair him enough," LaMora said. "That is one of the multiple reasons there was a car crash. The combination of that, driving late at night, cocaine in your system, caused him to take actions he probably should not have."
LaMora also insisted the children were improperly restrained.
"The children were too small to be restrained by seat belts," LaMora said. "They should have had booster seats or child seats of some sort. These children were too small and too light according to the guidelines for children of that size."
LaMora said the accident was a horrible
"We understand that there is nothing that we could fine or charge, or put Miss Miller in jail for the rest of her life, but we could never harm her as much as this accident did," LaMora said. "She has already lost two of her kids. But that does not give her the right to get out of a charge she absolutely did. She neglected her children and her neglect is the reason they are dead."
Tucker County Circuit Judge Lynn Nelson said he would take the motion to dismiss under advisement, and ordered that the Tucker County grand jury transcript in the case be transcribed.
The next hearing in the case is set for Sept. 3.
Also in Tucker County Circuit Court Tuesday:
George Keihl, 28, appeared with his attorney, Frank Bush. Keihl was indicted in June on one count of filing a false claim for medical assistance and one count of making a false statement for medical care, both felonies.
Bush contended the charge of filing a false claim for medical assistance "applies to the wrong statute."
"This action is not a felony and the statute does not apply," Bush said. "Mr. Keihl never made a claim to the Department of Health and Human Resources."
Nelson asked for
"So what you are saying is the Tucker County Ambulance Service made the claim to the DHHR, knowing it was false?" Nelson said.
"Right," said Bush. "A claim is defined as an application for payment for goods or services provided. I think the correct charge would have been obtaining services under false
LaMora insisted the charge was correct.
"Prior to the ambulance ride, Mr. Keihl asked two of our state troopers for a ride to Elkins and they refused," LaMora said. "He told the troopers all he had to do is call 911 and he has a medical card, so the ride would not cost him a thing. At that point, he was telling the officers that he was going to make a claim for those services and he did make a claim."
LaMora said by jumping on the ambulance, Keihl knew he would not have to pay a dime because he had a medical card.
"Keihl rode the sole ambulance on duty that night from Parsons to Elkins for his own benefit," LaMora said.
Nelson asked LaMora in what way he thought Keihl filed a claim.
"By calling 911 and knowing you are going to get an ambulance, and the insurance provider is the DHHR," LaMora said. "He didn't have to hand the insurance a paper - by knowing the claim would be submitted by the medical provider to the DHHR."
LaMora said the claim doesn't have to be a physical paper someone takes and hands to an insurance adjuster.
"That claim was made when he decided to take an action that results in the payment to a medical agency," LaMora said.
Nelson ruled to dismiss the charge of filing a false claim for medical assistance. He said the next hearing would be slated when a psychological evaluation of Keihl was completed.