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DUI law leaves family fearing lack of justice in man’s death

Amauria Lush, 18 months, poses with her mother, Joya Clyde, right, and grandmother Denise Lush. Amauria’s father, Mario Lush, was killed in a car wreck in December. (The Vicksburg Post/C. TODD SHERMAN)

[05/22/01] PORT GIBSON Denise Lush said she’s afraid she’ll never see justice for her son who was killed in a car wreck two days after his 20th birthday.

Mario Lush, a Port Gibson resident, died Dec. 2, the same day 28-year-old Larry Thompson, 14200 U.S. 61 South, was arrested for reckless driving and DUI, both misdemeanors, in Lush’s death. The DUI charge was dropped after a blood test revealed Thompson was not legally drunk.

At her Port Gibson home Monday morning, Denise Lush said she felt a sense of relief when it was time for Thompson’s case to be presented to the Warren County grand jury in May.

“I just knew he was going to be indicted, and then we could have some closure,” she said.

Instead, the grand jury, which decides if there is enough evidence to send a case to trial, found Thompson was not responsible. “It really shocked me,” she said. “I felt like I was being victimized twice.”

She said she was stunned to find out that the Mississippi Highway Patrol trooper working the wreck didn’t order a blood test on Thompson until three hours after the wreck. When administered, the test revealed his blood alcohol level was .08, less than the .10 required for a DUI conviction in Mississippi.

“Why did they just let him sit there in the back of that car with my son lying there dead?” Lush asked.

Warren Strain, director of public affairs for the Highway Patrol, said a delay is expected in a blood test at any wreck.

“The trooper has to secure the scene and do the accident reconstruction,” Strain said.

District Attorney Gil Martin said that since a DUI manslaughter indictment of Thompson could not be pursued, he asked the grand jury to consider the case as a negligent homicide, which raised the burden of proof.

“We had to show gross negligence, which in some cases, like this one, is harder to prove,” Martin said. “I am not totally faulting the trooper for not doing the test right away because I know he had a lot going on, but this is something they have got to think about.”

Martin said Warren County sheriff’s deputies on the scene of the wreck, who eventually took Thompson to the hospital for the test, could have done it earlier if they had been asked.

In a letter written to the Highway Patrol after the grand jury failed to indict, Martin said, “Please correct this situation. I don’t want to tell another family that we do not have enough evidence because of a three-hour delay in drawing blood when it could have been done in a more timely manner.”

Strain said he didn’t know deputies had been at the scene but that Martin could have used an elimination method to show what Thompson’s blood alcohol level would have been at the time of the wreck.

“There is a formula that they can use to determine that and experts that can testify to, and it is admissible in any court,” Strain said.

Martin said the elimination method is not as accurate as a blood test and there has to be solid proof of how long and how much a suspect was drinking. “We didn’t have those kinds of witnesses saying how much he had to drink or even what time he started drinking,” he said.

Under a federal mandate all states must adopt a .08 limit by 2004 or lose funding, but Lush said that is little comfort to her. “If it had already been if effect, he would have been legally drunk,” she said.

Several area states, including Alabama, Arkansas and Tennessee, have a .08 limit. A law lowering the limit to .08 from .10 is also pending in Louisiana.

Until last year, blood tests were mandatory on anyone involved in a fatal wreck, but the U.S. Supreme Court determined that was unconstitutional.

Now a police officer must have probable cause to require drivers to submit to a blood test.

Martin said Thompson admitted he had been drinking earlier in the night, but the nine grand jurors needed to make a majority couldn’t agree to indict.

“They gave it a lot of consideration, but enough of them didn’t feel there was a case for negligent homicide,” Martin said.

Thompson could not be reached for comment.

Mario Lush was on his way home from his job at Ameristar Casino in Vicksburg when the 1994 Nissan truck in which he was riding was hit from behind by the 1997 Pontiac Thompson was driving on U.S. 61 South.

“Someone called me and said Mario had been in a wreck and they couldn’t find him,” Lush’s mother said through tears.

A neighbor gave her a ride to the scene but by the time she arrived, her son, who had been ejected from the vehicle, was dead. “I can’t even tell you what happened in the next 30 minutes because I was so out of it,” she said.

Lush said she wants Thompson, who was released from the Warren County Jail on a $2,500 bond four days after her son died, to be held responsible. “I want the case to be represented to the next grand jury,” she said.

Martin said he hasn’t made a final decision about representing the case to July grand jurors, but usually there has to be new evidence for that to happen.

Joya Clyde, Mario Lush’s fiancee’ and the mother of his only child, Amauria, said she has only memories of the man with whom she spent four years of her life.

“I look at my daughter knowing that she will never have a father,” she said. “I lost my best friend and the person that was always there for me and my child.”