MINNEAPOLIS -- Amy Senser's attorney, Eric Nelson, isn't banking on winning at her trial just yet; he's taking a shot at not even going to trial by filing a motion to dismiss the case for lack of probable cause.
"The state has the burden of proof beyond a reasonable doubt that Ms. Senser knew she hit a person and the argument that we establish in the motion is that her behavior is inconsistent with someone who knew she just hit a person," Nelson said Friday night.
Nelson's argument is laid out in the 26 page motion filed in Hennepin County.
In it, he is very critical of evidence the state brought forward early last week suggesting Senser would likely know she hit someone at a 40 mile per hour rate of speed when the limit in the area of the accident was 55 miles per hour.
Nelson also points out, Senser had more phone calls on her cell phone that night than the 14 the state laid out and that those calls lend credibility to Senser's story that she was lost near I-94 and Riverside for 45 minutes while trying to rush to pick up her teenage daughters in St. Paul from a concert.
Those calls, Nelson said, were between Senser and the girls trying to connect for a ride home.
The motion also discloses new information about the victim, 38-year-old Anousone Phanthavong.
According to the autopsy performed on Phanthavong, it was learned that at the time he was killed, he had .60 mg of cocaine in his system. The motion describes that amount to be "enough for him to move erratically or unpredictably."
Those facts, according to Nelson, alongside Senser's main defense that she did not know at the time of the crash that she hit a person, add up to not enough evidence for her to stand trial for the charges of criminal vehicular homicide.
"The circumstances are not such that there is any evidence that Miss Senser knew she hit a person. We are not specifically saying that Miss Senser didn't know she hit something we are saying she didn't know she hit a person," Nelson said.
The state will get a chance to respond to this motion and a judge will decide its merits early next month.
Senser's criminal trial is scheduled to begin in April.
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