MANAGING EDITOR

MADISON — A Sylvester woman who caused an automobile accident that killed a Kanawha County paramedic has been charged with left of center and driving on suspended miscellaneous, according to Boone County Magistrate Court documents.

Both are misdemeanors.

Boone County Assistant Prosecutor Parker Bazzle said there isn’t sufficient evidence to charge Deborah Ann Baber with driving under the influence causing death or negligent homicide — both of those are felonies — in the death of Tennille Annette Davis.

That is frustrating not only to Davis’ family but also to Bazzle and Boone County Sheriff Rodney Miller.

“I understand the frustration on the part of the Davis family (she had a husband and two children),” Miller told the Coal Valley News on Monday. “We are frustrated, too. But it wasn’t from a lack of action or a lack of caring from any member of the sheriff’s office.”

Bazzle agreed.

“We share the sheriff’s office’s frustration,” Bazzle told the Coal Valley News on Tuesday. “But we can no longer substantiate a negligent homicide charge because of the state Supreme Court ruling. And we just don’t have the evidence for a DUI causing death charge.”

Baber was driving a Ford Explorer on Jan. 13, 2007, when she crossed her sports utility vehicle into Davis’ lane on W.Va. 3, according to an incident report filed by Deputy C.A. Douglas of the Boone County Sheriff’s Department.

Although she was severely injured, Baber and her two young children survived the head-on collision.

Davis, who was driving to Racine to teach an emergency medical class, didn’t. She died at Charleston Area Medical Center General Hospital the next day.

Baber was given a drug test at the hospital, Bazzle told the Charleston Gazette, but investigators discovered the test didn't quantify how much of any substance was found in her system.

That meant prosecutors couldn't say whether she was impaired by anything or not, the newspaper reported.

No alcohol was found in her system, Bazzle told the Charleston Gazette.

Baber later acknowledged taking the anti-anxiety medication Xanax, the newspaper reported, but she said she didn't take it the day of the accident.

"We do not have sufficient evidence to proceed and make a case for a DUI type of charge," Bazzle told the Charleston Gazette. "We had a big meeting and looked at all the evidence and that's (the decision) we reached."

Miller said the deputies who handled the accident didn’t request additional tests because there wasn’t probable cause to suspect Baber was impaired at the time of the accident.

He said patient privacy laws made it impossible for them to know she already had taken a drug test at the hospital.

“In the past, hospitals use to do a quantity measurement when they do a presumptive test for substances in a person’s body,” Miller told the Coal Valley News. “Now, they don’t do that.

“Without us having some kind of tip-off to know we need to get a court order and seize blood so we can do a more thorough test of the blood, we are at a disadvantage. Hospitals destroy the blood within 48 or 72 hours. It’s gone. And hospitals are not able to give out that kind of information because of HIPPA (Health Information Portability and Accountability Act) regulations.

“It kind of puts law enforcement at a disadvantage unless they have reason to believe at the accident scene that the person was impaired so that a court order can be obtained. In this case, the people at the scene didn’t give deputies any indication that there was any kind of impairment. I’m not sure that the medical records even gave it — at least the initial medical records until we were able to get a subpoena.

“When we did get a subpoena, we got the medical records and we saw that they did indicate some type of substance in her system. At that point, with the hospital destroying the blood, we were not able to get it.

“Without levels to show intoxication, the prosecutor tells us, they are not able to make an effective case. And the ruling from the state Supreme Court in regard to a negligent homicide is that somebody being on the wrong side of the road in itself does not meet the criteria.”

Baber, 27, is in Southwestern Regional Jail, where she is serving the balance of a sentence from a 2005 drug conviction.

The Charleston Gazette reported that Baber was on probation at the time of the accident for pleading guilty to delivery of a controlled substance in July 2005.

Because she admitted taking Xanax without a prescription and to driving on a suspended license, her probation was revoked, according to the newspaper. She is in jail serving one to five years.

“Personally, the guys in the department are not particularly satisfied with what we were bound to do by law,” Miller told the Charleston Gazette. “We certainly — at least in the onset of the investigation — anticipated more. But the law and court rulings are what they are. Unfortunately, in this case that is the way it is. We're stuck.”

Contact Jacob Messer at jacobmesser@coalvalleynews.com and 369-1165 or 785-8951.