Indictment reinstated in DUI case

The Nevada Supreme Court has reinstated a felony drunken driving indictment involving an accident that killed another driver.

Daniel Burcham of Las Vegas was indicted following the accident in which his vehicle rammed a car driven by Dylan Whisman, who was stopped at a traffic light.

The vehicle burst into flames, killing Whisman.

Burcham admitted to drinking one beer the night before the collision. His blood tested at 0.07 percent alcohol a half hour after the wreck.

The grand jury accepted the district attorney's argument that Burcham would have been at least 0.08 percent " legally intoxicated " at the time of the collision.

Burcham countered that the state couldn't prove he was at or above the legal limit and that its theory needed expert testimony before it could be accepted.

The district judge dismissed the charge of DUI causing death, agreeing with Burcham's lawyer that the state didn't present enough evidence to support the charges.

The Clark County district attorneys office appealed.

The high court agreed with the district court that the prosecution must prove "a connection" between the intoxication and the defendant's inability to drive safely. But Justices Mark Gibbons, Bill Maupin, Jim Hardesty and Ron Parraguirre disagreed that the state failed to offer enough evidence to support an indictment.

"The grand jury does not determine guilt or innocence, but instead decides whether probable cause supports the indictment," they wrote, making it clear the jury makes that determination at trial.

"We conclude that the state presented sufficient evidence to support a reasonable inference that Burcham was driving under the influence and caused Whisman's death," they ruled, ordering Burcham bound over for trial.

The other three justices, Michael Cherry, Michael Douglas and Nancy Saitta, agreed with the majority that there was sufficient evidence to bind Burcham over for trial.

But they said they would not support the prosecution's argument that, if he was just under the limit when tested, he must have been above it at the time of the collision.

That theory, they said, would require the testimony of an expert witness to support it.

- Contact reporter Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.