The two Berthoud High School wrestlers who lost their legs after an auto accident in January had been drinking before another teen hit them as they tried to fix their vehicle, records obtained by 9News show.
Tyler Carron and Nikko Landeros were hit Jan. 15 on the side of Larimer County Road 17 as they changed a flat tire, and classmate Michelle Berra has been charged with two counts of careless driving resulting in bodily injury, records show.
However, Carron and Landeros, both 17 at the time, had been drinking and stopped to fix their vehicle in a traffic lane, contributing to the cause of the accident, Berra’s attorney argued in a Friday court filing.
Berra’s attorney, Stephen C. Peters, wrote that his client will assert an affirmative defense, not denying that Berra’s vehicle hit the teens, but arguing that Carron and Landeros contributed to the accident, which led to both boys’ losing their legs.
“But for the unforeseen and unlawful conduct of Mr. Carron and Mr. Landeros, neither one of them would have been injured in this accident,” according to the filing notifying the court of the affirmative defense in the careless driving case.
Carron and Landeros were tested for alcohol when they were admitted to the hospital.
Carron, who was driving the vehicle that sustained a flat tire, had almost twice the legal blood- alcohol level at 0.15 percent, according to medical records anonymously mailed to 9News. Landeros’ blood tested positive for alcohol, the records show, but there was no level given.
The Carron and Landeros families issued a statement in response to the court filing:
“… During the last four months we have talked with doctors, lawyers, police officers, state patrol, and the district attorney’s office on numerous occasions. At no point has alcohol or the allegations outlined in the ‘notice of affirmative defense’ ever been mentioned.
“Michelle Berra was charged with two counts of Careless Driving Resulting in Bodily Injury because the Larimer County District Attorney’s Office had probable cause to believe she was at fault in this terrible accident. Four months later the blame is now being shifted.
“We will let this case be decided by the courts. … We will deal with this as a family and get through it together. …”
Police did not test any of the people in the case, including three teenage girls who were in Carron’s vehicle, Berra or students who stopped to help, 9News has learned.
The insurance company for the Berra family settled with the boys last week.
The defense will also argue that Carron and Landeros stood in front of the taillights of their vehicles and did not get out of the way when they saw the headlights of Berra’s vehicle. That made it impossible to avoid the accident, the filing says.
“No one driving at almost midnight on January 15, 2007, could have reasonably foreseen all of these ‘attendant circumstances’ or the use that Mr. Carron and Mr. Landeros were making of County Road 17 at the time of this tragic accident,” Peters wrote in the filing.
“Intoxication alone will not win the case for the driver, but if you couple that with bad decisions made by the young men to where they were, it could play a role in an acquittal,” said 9News legal analyst Scott Robinson.
