- Associated Press - Friday, December 26, 2014

BOZEMAN, Mont. (AP) - A Gallatin County judge dismissed a charge of vehicular homicide while under the influence filed against the owner of a Belgrade liquor store, saying investigators didn’t preserve key evidence and prosecutors did not have probable cause to charge him in his wife’s death.

Michael Soule, 41, of Manhattan was accused of driving drunk on Interstate 90 west of Bozeman and causing a crash that killed 37-year-old Jennifer Soule early on Jan. 25, 2012, the Bozeman Daily Chronicle (http://bit.ly/144a8yu) reported.

Prosecutors alleged Soule was driving a pickup just over 100 mph and had a blood-alcohol content of 0.231 when the vehicle crashed into a guardrail. Both were ejected from the pickup.

Soule pleaded no contest in January 2013 as part of a plea agreement that called for a 10-year suspended sentence so he could care for the couple’s two children. District Judge Mike Salvagni rejected the plea agreement without explanation.

Defense attorney Al Avignone then sought to have the charge dismissed. He successfully argued that Montana Highway Patrol troopers failed to preserve evidence that could have exonerated his client. Avignone argued troopers didn’t collect a long hair from a jagged piece of metal near the driver’s side door and that recordings of witness statements were somehow lost. The vehicular homicide charge was dismissed last week.

“While the police have no duty under Montana law to assist a defendant in gathering exculpatory evidence, once it is obtained, the police have a duty to preserve the evidence,” Salvagni wrote.

Salvagni said the affidavit of probable cause in the case failed to note that DNA from both Soule and his wife were on the driver’s side air bag, but only Michael Soule’s DNA was on the passenger side air bag, there were no fingerprints recovered from the keys or steering wheel that could have indicated who was driving and prosecutors had no witnesses who could identify who was driving.

Salvagni also found that troopers conducted a number of warrantless searches and seizures in Soule’s hospital room and that a legal blood draw taken two hours after the crash showed Soule’s blood-alcohol level was 0.07, just below the limit of 0.08 at which a person is considered legally intoxicated.

Eric Kitzmiller, chief deputy Gallatin County attorney, said he was disappointed with the decision and would consult with the attorney general’s office to determine whether to appeal. Prosecutors have 20 days to decide.

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Information from: Bozeman Daily Chronicle, http://www.bozemandailychronicle.com

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