By Dan Testa, 10-07-09
||Caption: Authorities investigate the site of where the boat carrying Congressman Denny Rehberg, state Sen. Greg Barkus and three others crashed near Bigfork the night of Aug. 27. - File photo by Katrin Frye for the Beacon
Three felony charges were filed against Kalispell state Sen. Greg Barkus Wednesday after his alleged driving of a boat under the influence of alcohol led to an Aug. 27 crash on the shore of Flathead Lake that injured him, his wife, Congressman Denny Rehberg and two of his staff members.
But shortly after making an initial court appearance, Barkus' attorney issued a statement disputing the alleged blood alcohol content (BAC) levels upon which the charges are based, making a lengthy series of court proceedings likely.
Charging documents revealed a blood test taken one hour and 45 minutes after the accident by Kalispell Regional Medical Center showed Barkus had a BAC of 0.16, twice the legal limit. Four hours after the accident, a test administered by the Department of Fish, Wildlife and Parks revealed Barkus’ BAC at 0.12.
Flathead County Attorney Ed Corrigan charged Barkus with felony criminal endangerment for knowingly engaging in “conduct that created a substantial risk to of death or serious bodily injury to others,” referring to the passengers on the boat. The charge carries a maximum term in state prison of 10 years and/or a maximum fine of $50,000.
Barkus is also charged with two counts of felony negligent vehicular assault for operating a motorboat under the influence of alcohol and causing “serious bodily harm” to two of the passengers: Rehberg and his staffer, Dustin Frost, who suffered a severe brain injury in the crash. Each count is punishable with a maximum term of 10 years, and/or a maximum fine of $10,000.
A warrant was also issued for Barkus’ arrest with bail set at $30,000. Accompanied by his attorney, Todd Glazier, Barkus made his initial court appearance Wednesday afternoon. Justice of the Peace David M. Ortley read the charges and informed Barkus of his rights before releasing him on his own recognizance under certain conditions, including that he not drink alcohol. Barkus' arraignment on the criminal endangerment and two counts of vehicular assault was scheduled for Oct. 22 before District Judge Nels Swandal of Livingston.
Glazier released a statement Wednesday evening disputing the BAC levels in the charging documents and saying there are witnesses willing to testify that Barkus did not have enough to drink to cause impairment.
"We adamantly disagree with those alleged levels set forth in the charging document," Glazier said in the statement. "We have several witnesses that will testify that Mr. Barkus was not impaired at the time of the accident. In fact, the dinner receipt will show that Mr. Barkus did not consume enough alcohol to be impaired when he left the restaurant shortly before the accident, nor was there any alcohol aboard the boat. As the Frost family has said, this was just an unfortunate accident, but nothing more than an accident."
The charging documents recount the circumstances of the night leading up to the crash, much of which reinforces what has been reported in the six weeks following the accident: Following a dinner and reception at The Docks restaurant in Lakeside, Barkus, his wife Kathy, Rehberg and his Deputy Chief of Staff Kristin Smith and State Director Frost traveled from the west shore of Flathead Lake heading for the Marina Cay resort in Bigfork, where the Republican congressman and his staff were staying that night.
The group left the restaurant at around 10 p.m. on Barkus’ boat, which “was not equipped with a spotlight or other lighting to illuminate its path,” according to the document. As a result, Barkus was navigating with a GPS device and appeared to be confused about the direction the boat was heading, according to Smith, one of the witnesses listed in the affidavit, who recalled Barkus saying, “I think I’m turned around,” believing they were heading toward the mouth of the Flathead River, rather than Bigfork, to the east.
Barkus then made a “big” course correction to the right, according to the affidavit. Smith said she believed the boat was traveling at 40 miles per hour, and though the speedometer appeared to be broken, told investigators she recalled the engine being run at 4,000 rpm. Jesco Boat Center confirmed for investigators that Barkus’ boat, with five passengers, could have been going as fast as 45 miles per hour at 4,000 rpm.
Smith said “we were definitely heading, like, full speed straight forward” when she first realized the boat was about to hit the steep, rocky shoreline near Wayfarer’s State Park, just south of Bigfork, according to the affidavit. Her recollection was backed up by a nearby camper who remembered hearing a boat traveling fast just before the collision.
From scrape marks and debris patterns, investigators believe the boat was heading north when it struck the shoreline at a 30-degree angle, went airborne, and then crashed into the rocks and cliff, coming to rest.
According to Barkus’ dinner tab and a waitress interviewed, he had two drinks of Dewars scotch. The affidavit quoted Smith recalling that Barkus drank wine also: “And so I remember Greg had-had one of those, and then after that I saw him drinking red wine…They had bottles of red and white wine out, um, you know, with drinks. So I saw him–he was basically drinking, at least what I saw, red wine for the rest of the night.”
Rehberg has said he did not see whether Barkus was drinking at the restaurant, and did not see any sign that he was impaired at all as the group got back on the boat. He released a statement Wednesday: "I was surprised to learn the results of Greg’s blood alcohol test. He didn’t appear to be impaired to me when we got on the boat for the return trip to Big Fork. There is, of course, a presumption of innocence in our system of justice and the charges made today by the prosecutors are now in the hands of the Court. I’ll continue to provide whatever information I can to the authorities. My thoughts and prayers remain with Dustin, Kristin, Kathy, Greg and their families."
Barkus, the state Senate Republican Majority Whip in the 2009 Legislature, suffered a broken pelvis, several broken ribs and lacerations in the crash. He traveled to a hospital in Seattle for surgery on his pelvis and has been recovering at his home for the last several weeks. Rehberg suffered a badly broken left ankle that required surgery to repair. Frost was in a coma for several days after the crash from a severe head injury. He is now recovering in Missoula. Smith and Barkus’ wife suffered less severe injuries.
Records show Barkus was previously pulled over for drunken driving in 2004 by the Montana Highway Patrol. The charge was reduced to reckless driving, to which Barkus pleaded guilty and was ordered to pay a $335 fine and sentenced to attend a driving-and-alcohol course by a Lake County judge. Barkus said at the time his reckless driving was due to worry over the health of his mother.
Barkus, whose term expires next December and can't run again because of term limits, won't be in office when the Legislature convenes again for a regular session in January 2011. He'll be forced from office if convicted of a felony before his term expires.
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