A three-judge appeals panel has reversed the conviction of a man sentenced to 11 years in prison for driving drunk and hitting two girls in a crosswalk, leaving one paralyzed and blind.
Konstanty Makowski, of Los Angeles, was convicted in May 2014 of one count each of DUI causing injury and driving with a 0.08 percent blood-alcohol content causing injury.
In his appeal, Makowski’s defense attorney challenged the exclusion of expert testimony about the dangerousness of the intersection in question.
The panel found that “the trial court’s exclusion of expert testimony deprived defendant of due process and cannot be deemed harmless error.”
On the evening of Sept. 7, 2012, Minh Tri Thile, known as Tracy Le, was walking home from a market in Glassell Park with her 14-year-old daughter, Mylinh Chung, and her 7-year-old granddaughter, Myky Truoung.
The trio looked both ways before crossing San Fernando Road at Hallett Avenue and were nearly across the intersection when a car struck the trio, according to facts summarized in the panel’s opinion.
The daughter suffered fractured hips, broken bones in her face and bleeding in the brain and spent eight days in a hospital.
The granddaughter had been thrown almost 80 feet by the impact and had severe injuries to her spinal cord and head that caused strokes and put her in a coma. She was permanently unable to walk, talk, see or care for herself and suffered seizures, according to court documents.
Makowski, who stayed on the scene, was arrested and given two breath tests at Men’s Central Jail. The tests registered blood-alcohol levels of .21 and .19, according to the panel.
Video surveillance showed other cars passing through the crosswalk without slowing on the busy four-lane street without a traffic signal.
At trial, the court did not allow an expert witness for the defense to testify about reduced visibility, heavy traffic and reaction times.
The decision relied in part on the availability of two videotapes of the crash, which the lower court deemed sufficient for the jury to draw its own conclusions.
The appeals court panel disagreed, saying Monday that some factors related to the crash were “beyond the common knowledge of a jury.”
The trial court also did not allow residents to testify that the intersection was dangerous or that they had witnessed prior accidents there, a decision affirmed by the appeals court based on the speculative nature of that testimony.
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