BOISE, Idaho — The felony charge against an 18-year-old who prosecutors say was using his cell phone when he hit and critically injured a child last year has been dismissed.
Judge Karen Vehlow on Monday declined to move the case against Conner Brant up to district court, saying the evidence against the teen was not strong enough for her to sign off on the felony manslaughter charge proceeding toward trial.
"I don't think there's enough to give me probable cause," she said. "I don't think it rises to the felony level, even though it is horrible."
Brant was driving on Amity Road the evening of July 18 when his pickup veered onto the shoulder, hitting 7-year-old Eduard Prokopchuk, who was riding his bicycle along the road with two other boys. The impact sent Prokopchuk flying into a fence and knocked him unconscious.
The boy died from his injuries at St. Luke's Children's Hospital the next day.
Brant told deputies at the scene that he had swerved to avoid an animal running across the road.
Prosecutors originally charged the driver with a misdemeanor, then upgraded the manslaughter count to a felony after a forensic analysis of Brant's phone.
According to that analysis, Brant had been using the message function on Snapchat around the time of the wreck. He sent a message from his phone at 7:25 p.m., investigators noted.
The first 911 call, made on the side of the road by a woman who had stopped to help, came six seconds past 7:26 p.m.
But Mark Manweiler, Brant's defense attorney, argued that there is no evidence that Brant read the messages that came in after the last one he sent, and that a 66-second gap was too large definitively say whether he was looking at the phone or typing when he veered off the road.
In addition, there is no state or county law or ordinance that specifically outlaws using a cellphone behind the wheel, Manweiler said. Likewise, it is not illegal to temporarily cross over a fog line.
"Everybody who drives an automobile occasionally takes their eyes off the road. That's not illegal. It had terrible consequences here, no doubt about it, and they're horrible, no doubt about it," Manweiler said. "But people adjust their radios, they adjust their stereos, they look in their side-view mirrors, they look in their rearview mirrors, they eat food, they put makeup on - as long as that's done for a brief second... it's not gross negligence by a matter of Idaho law."
But prosecutor Michael Guy pointed out that Brant had lied to deputies by telling them that he had not been on his phone before the crash, when the evidence showed that he had been.
"Does it make sense for the defendant to text somebody after he has just struck something on the side of the road? No, it doesn't," he said. "What makes sense, your Honor, is that leading up to this accident the defendant was not looking at the roadway."
Guy said that Brant had seen the children riding along Amity before the crash, and still was not motivated enough to keep his eyes on the road.
"He recognized, he was put on notice that there were boys biking on the side of the road, and he continued to look at his phone," he said.
But Vehlow said that even if Brant had acted negligently, she was still was not convinced that the evidence was strong enough to make the case a felony rather than a misdemeanor.
Prosecutors will have the option to refile the case, although it's unclear whether it would be filed as a felony or misdemeanor. In a statement, Ada County Prosecutor's Office spokeswoman Emily Lowe said prosecutors haven't yet determined how they are going to proceed.
"Prosecutors are currently carefully reviewing both the evidence in this case and Monday's preliminary hearing ruling," the statement reads. "The office is weighing all options on how to proceed in the future with this case."