Defense invokes Marsy’s Law in fatal 2023 crash
Woman was killed in sports bar parking lot
Scott Andrew Brofcheck admitted to having three 12-ounce Miller Lite beers before his Chevy Tahoe hit his longtime girlfriend and business partner Dec. 6 in the Liberty Station Sports Bar parking lot, Delaware County prosecutors alleged in court documents.
He was dropping off Laura Smith Baum in front of the bar and apparently failed to see her as he pulled away, knocking her to the ground.
The 63-year-old smelled like alcohol,
and he refused a field sobriety test, Delaware County Sheriff’s investigators alleged in court documents. More than two hours after the impact that eventually killed Baum, the State Highway Patrol used a court order to take a sample of
Brofcheck’s blood, testing it at 0.081, just barely over the limit at which Ohio considers motorists drunk.
Because of Brofcheck’s role as provider to Baum’s two sons, his attorney says that Marsy’s Law, which protects crime victims in Ohio, should also apply to him. Among the benefits would be allowing Brofcheck to give input on plea deals, prompt disposition of his case and even restitution for economic losses resulting from the criminal offense.
“This is probably the most bizarre Marsy’s Law case I’ve ever witnessed,” said Marty Midian, Brofcheck’s attorney.
“The witnesses are all related to the defendant in this case. And my client is also a victim,” Midian said. “Anything negative that happens to him is also going to be a negative to his family.”
Brofcheck was living with Baum and her two sons in their 20s for whom he provides financial and other assistance. Both were committed to the relationship and the sons, those who know them have said. But the business required attention and management flair that only Baum and Brofcheck could provide. Now, that falls on him.
“He alone knows how to run that business, and I don’t think anyone else in the family knows how to do that,” said Midian.
Alcohol worsens already serious consequences
initially charged
Brofcheck with aggravated vehicular assault, a felony punishable by up to five years in prison. But earlier this month, Judge David Gormley agreed with prosecutors to dismiss the case and to reconsider new charges since Baum had died, according to court records.
Now, a grand jury is expected to hear the evidence and likely charge Brofcheck with aggravated vehicular homicide which carries a mandatory prison term of two years to eight years, along with a lifetime driver’s license suspension.
That, says Midian, would directly affect Baum’s children, already struggling with the loss of their mother and facing a father figure who can’t drive, work and might face time in prison.
The application of Marsy’s Law in such a case is unusual because Marsy’s Law doesn’t directly apply to defendants, according to Ohio law.
But Midian says it may be used by prosecutors and judges who seek true justice for victims.
He is hoping to negotiate a deal with Delaware County Prosecutor Melissa Schiffel’s office, one that is sensitive to the unique circumstances of the case.
Specifically, prosecutors could file a bill of information to restart the criminal case while bypassing a grand jury.
Schiffel’s office declined to comment on the case.
John Saia, a veteran defense attorney, about 90% of whose cases are for drunk driving, said that Midian’s approach is novel.
“It’s an interesting argument. I’m not sure where (Marsy’s Law) would apply in a case like this,” he said. “But I think it’s a great argument to at least gather some empathy for the defendant.”
Was Brofcheck impaired, and did that cause the crash?
By refusing a field sobriety test, Brofcheck bought time to sober up. Only after Baum was taken to Ohiohealth Riverside Methodist Hospital and her condition worsened did sheriff’s deputies get a court order for a blood test — two hours and 1 minute after deputies responded to the call, according to sheriff’s records.
Midian says that if the three beers were consumed shortly before the impact, the alcohol would not have fully entered Brofcheck’s blood and wouldn’t have affected his judgment. The full effects of a drink are felt between 15 and 45 minutes, depending on the speed of absorption and other factors, studies show.
Saia, the defense attorney and legal expert on alcohol’s effect on humans, said that alcohol typically peaks 45-75 minutes after consumption.
For three 12-ounce beers, he estimates a blood-alcohol level of 0.10-0.12 at its peak.
But the investigative report doesn’t indicate the timing of Brofcheck’s consumption or other factors, such as his metabolism and how much he ate, which can help to mitigate alcohol’s effects.
If the case ever goes to trial, it would likely involve expert witnesses dissecting the blood testing protocols and disputing Brofcheck’s sobriety at the time.
“We really have no idea what the test results were at the time of the accident,” Midian said.
Both attorneys also maintain that the impact with Baum might have been so unusual as to be unavoidable. And that her death might have been the result of something else such as a pre-existing medical condition or medical malpractice by medics or hospital staff.
Prosecutors and Midian are both awaiting medical tests, including autopsy results.
The tragedy illustrates the danger of cars, even at low speed; and how alcohol consumption can compound a family’s grief into a far-reaching financial liability, Midian said.
“It you eliminate the impairment, the incident becomes a misdemeanor, failure to yield.”
As of Thursday morning, almost $14,000 toward a $15,000 goal had been collected for Baum’s family at gofundme.com/f/laura-smith-baum.
dnarciso@dispatch.com