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Man Who Killed Five in Mon County To Be Resentenced

The state Supreme Court on Thursday upheld most of the 25 convictions for a Monongalia County man who was driving drunk when he caused an accident that killed five people on Interstate 68 in 2007.

But the court also overruled a circuit court’s decision to convict Brian Stone on multiple counts of fleeing the scene of deadly accident.  The court said that despite the number of victims in an accident, a defendant can be charged with only one count of fleeing the scene of deadly accident.  Stone was convicted and sentenced on multiple counts.

Stone was sentenced to 41 years behind bars after he was convicted of driving drunk when he slammed into the back of a car driven by Courtney Evans.  That forced her to go across the median and collide with an SUV.  Evans and Swyer, his 12-year-old son, died.  His wife and two other children were critically injured.

Meanwhile, Donnell Perry, of Clarksburg, was driving the SUV.  He died, along with his two teenage daughters.  His wife, daughter and three grandchildren were also hurt.

Because the court ruled Stone can be found guilty of only one count of leaving the scene of a deadly accident, he will have to be resentenced.

The court denied Stone’s request for the case to be tossed out.  In court papers, Stone and his defense team said there was a lack of evidence to prove Stone caused the accident.  Stone wanted a pre-trial acquittal or new trial.  The high court disagreed.

“We are not persuaded by Appellant’s argument,” the court said in its decision.

Justices also ruled that Stone’s blood alcohol content level was admissible in court.  Stone had an alcohol level of 0.23; the legal limit is .08.  Stone argued that evidence should not have been used at trial because he never consented to the test.  The court rejected that argument.

In fact, the court said, all motorists in West Virginia consent to alcohol tests simply by driving on state roadways.

“We hold…that under West Virginia Code §17C-5-4, any person who drives a motor vehicle in this state is deemed to have given his or her consent by the operation of the motor vehicle to a preliminary breath analysis and a secondary chemical test of either his or her blood, breath, or urine for the purpose of determining the alcoholic content of his or her blood,” the ruling reads.

The court says that if a person refuses to submit to any secondary chemical test, the test shall not be given “except pursuant to a valid search warrant.”

Witnesses said Stone was driving faster than 80 mph at the time of the wreck.  He had previously been convicted of multiple DUIs in several states.

Stone will be resentenced based on the court’s ruling.

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