Belgrade Liquor Owner Michael Soule Motions Hearing

Michael Soule, left, owner of Belgrade Liquor, consults with his attorney during a motions hearing on Tuesday, Sept. 16, in Judge Mike Salvagni's courtroom at the Gallatin County Law and Justice Center in Bozeman. Soule is asking to dismiss the case against him on a charge of felony vehicular homicide while under the influence.

A judge has dismissed a vehicular homicide charge against the owner of Belgrade Liquor, saying that investigators failed to preserve key evidence and that prosecutors did not have probable cause to charge him with his wife’s death.

On Friday, Gallatin County District Judge Mike Salvagni dropped the felony vehicular homicide while under the influence charge against 41-year-old Michael Soule.

Michael Soule was accused of driving drunk and killing his 37-year-old wife, Jennifer, in a crash on Interstate 90 west of Bozeman during the early morning hours of Jan. 25, 2012.

Charging documents alleged that Michael Soule was driving a Dodge truck up to 103 mph on I-90 with a blood-alcohol content of 0.231, nearly three times the legal limit, when the vehicle crashed into a guardrail. Prosecutors alleged that Michael Soule also had marijuana and cocaine in his system.

Michael Soule pleaded no contest to the charge in January 2013 as part of a plea agreement that gave him 10 years probation and no prison time.

However, in June 2013, Salvagni rejected the agreement, and Michael Soule subsequently withdrew his no contest plea and pleaded not guilty. He was scheduled to go to trial on the charge next month.

Earlier this year, defense attorneys filed a number of motions, asking Salvagni to dismiss the charge against Michael Soule.

In his order issued Friday, Salvagni sided with the defense. The judge said that Montana Highway Patrol troopers failed to preserve important evidence in the case as part of their investigation.

That evidence included a long, brown hair consistent with Jennifer Soule’s hair that was photographed on a jagged piece of metal near the driver’s door, as well as multiple recordings of witness interviews at the scene of the crash and a swab of DNA evidence taken from the driver’s side dashboard.

Salvagni said that evidence was exculpatory and could have been used by Michael Soule to rebut prosecutors’ theory that Jennifer Soule was the passenger and was ejected from the sunroof in the crash.

The state also apparently destroyed audio recordings -- one from the first person who came upon the scene of the crash -- saying Michael Soule was found near the front of the truck and not near the driver’s door as the state contended. Salvagni called the destroyed recordings “troubling.”

“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. “To allow the state to proceed with prosecuting Michael will only encourage the state to destroy evidence with impunity.”

In addition, the affidavit of probable cause in the case contained a number of omissions, Salvagni ruled. Those include:

- Jennifer Soule’s DNA and Michael Soule’s DNA were both found on the driver’s side airbag, but only Michael Soule’s was found on the passenger side airbag.

- A long brown hair consistent with Jennifer Soule’s hair was found on the driver’s door.

- There were no fingerprints recovered from the keys or steering wheel that could have indicated who was driving.

- No witnesses could identify who was driving.

- Neither person in the truck was wearing a seatbelt.

- Both were found outside the vehicle.

In Salvagni’s order, he also ruled that investigating troopers conducted a number of warrantless searches and seizures in Michael Soule’s hospital room the morning of the crash.

Troopers went into the trauma room while Michael Soule was unconscious and obtained healthcare information, removed Michael Soule’s hospital gown and sheet, examined his body and took photographs of his injuries and personal property.

“While Michael could expect that hospital staff would enter his hospital room to provide medical treatment, Michael had no reason to believe that law enforcement officers would enter the treatment area and his room to search,” Salvagni wrote.

And while a screening test of Michael Soule’s urine at the hospital tested positive for marijuana and cocaine, a confirmation test was never done, and his blood was never tested for the two drugs. The only legal blood draw tested by the Montana State Crime Lab showed Michael Soule’s BAC was 0.07 and that the amount of marijuana in his system was below the legal limit for medical marijuana cardholders, which Michael Soule is.

Gallatin County Chief Deputy Attorney Eric Kitzmiller said he was disappointed in Salvagni’s decision. Kitzmiller said his office will consult with the Montana Attorney General’s Office to determine whether to appeal Salvagni’s decision. Prosecutors have 20 days to decide.

“I think the officers tried to do a good job with their collecting of evidence. It’s obvious they made some mistakes. There’s no question about that. We don’t minimize that,” Kitzmiller said. “But I don’t think it warranted a dismissal of the case.”

Defense attorney Al Avignone called Michael Soule’s court victory “bittersweet.”

“Nothing at this point is going to bring Jenny back,” Avignone said.

Avignone called the charge “wrong-headed, misguided prosecution that never should have been filed in the first place.”

When asked why Soule initially pleaded no contest to the charge, Avignone said at the time, if the judge had accepted the plea agreement, Michael Soule would not have spent any time in jail, allowing him to continue caring for his kids.

“He was willing to take a felony conviction of homicide on his record. That’s how much he loves his children,” Avignone said.

But at the time, the defense’s investigation wasn’t complete, Avignone said.

“As we kept pressing and pushing for more information, we learned about the things we included in our motions,” Avignone said.

“This is quite frankly a wonderful Christmas present for the children to have their father freed up from the weight of preparing for a trial,” Avignone said.

Whitney Bermes can be reached at wbermes@dailychronicle.com or 582-2648. Follow her on Twitter at @wabermes.

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Whitney Bermes is the city editor and covers cops and courts for the Chronicle.

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