Prosecutors say state Sen. Greg Barkus had a blood-alcohol level of .16 nearly two hours after the night-time crash.
Felony charges have been filed against state Sen. Greg D. Barkus, who allegedly was piloting his boat under the influence of alcohol on Aug. 27 when it crashed into the rocky shore of Flathead Lake - injuring him and four other people.
Prosecutors allege Barkus' blood alcohol level was .16 about one hour and 45 minutes after the 10:20 p.m. crash near Wayfarers State Park and .12 about four hours after the crash.
Barkus, 62, turned himself in Wednesday afternoon at the Flathead County Justice Center after a District Court judge issued a warrant for his arrest earlier that morning.
The veteran legislator, however, maintains he was not impaired when the crash occurred, according to a statement released by Barkus' attorney, Todd Glazier.
Barkus, R-Kalispell, faces one count of criminal endangerment and two counts of negligent vehicular assault - all felonies.
Justice of the Peace David M. Ortley released Barkus, a 29-year resident of the Flathead Valley, on his own recognizance following his initial court appearance Wednesday afternoon.
During the hearing, which he attended in a wheelchair, Barkus was read the charges against him and informed of his rights.
Deputy Flathead County Attorney Alison E. Howard unsuccessfully petitioned Ortley to set Barkus' bail at $30,000.
"It's my understanding, based on the charges and the injuries people sustained, that it seems more than fair at this point," Alison said.
Glazier turned and immediately responded, almost incredulously: "Are you serious?"
Afterwards, Barkus was booked and released from the Flathead County Detention Center on certain conditions - including that he not consume alcohol.
The first blood sample, taken at Kalispell Regional Medical Center, was obtained by detectives with the Flathead County Sheriff's Office and the second sample was acquired by investigators with the Montana Department of Fish, Wildlife and Parks.
A point of contention even before charges were filed, the state's blood-alcohol evidence is expected to be challenged.
"We have reviewed the Information and the alleged blood alcohol content levels. We adamantly disagree with those alleged levels set forth in the charging document. We have several witnesses that will testify that Mr. Barkus was not impaired at the time of the accident," according to Glazier's statement.
Injured in the crash were Barkus; his wife, Kathy; U.S. Rep. Denny Rehberg; and two of Rehberg's staffers, Deputy Chief of Staff Kristin Smith and State Director Dustin Frost.
Frost, the most severely injured, was in a coma for 10 days and continues to recover from serious brain trauma.
Rehberg suffered a broken ankle and fracture around his eye while Greg Barkus broke his pelvis and underwent surgery at Harborview Medical Center in Seattle. Smith and Kathy Barkus suffered less serious injuries.
BARKUS AND his passengers left The Docks restaurant in Lakeside shortly after 10 p.m. Aug. 27 to return Rehberg to his Bigfork hotel.
Court papers allege that the restaurant tab and a waitress indicate Barkus had two drinks containing hard alcohol, possibly Scotch. That was supported by information provided by Smith:
"And so I remember Greg had... one of those [hard drinks], and then after that I saw him drinking red wine," Smith told investigators. "They had bottles of red and white wine out, um, you know, with drinks. So I saw him - he was basically drinking, at least what I saw, red wine for the rest of the night."
Defense attorneys, however, present a different version of what occurred the night of the crash.
"In fact, the dinner receipt will show that Mr. Barkus did not consume enough alcohol to be impaired when he left the restaurant shortly before the accident, nor was there any alcohol aboard the boat," Glazier said in his statement. "As the Frost family has said, this was just an unfortunate accident, but nothing more than an accident. Our prayers continue to be with those injured and their families."
In a statement released Wednesday, Rehberg said he was "surprised" to learn the results of Barkus' blood-alcohol test.
"He didn't appear to be impaired to me when we got on the boat for the return trip to Bigfork," Rehberg said. "There is, of course, a presumption of innocence in our system of justice and the charges made today by the prosecutors are now in the hands of the court. I'll continue to provide whatever information I can to the authorities."
Barkus is believed to have used s GPS system to navigate that night. His boat was not equipped with a spotlight or other lighting to illuminate its path.
At one point during the trip, Barkus appeared to be confused about their location - thinking they were headed toward the Flathead River rather than toward Bigfork - and made a sizable course correction to the right, Smith told investigators.
The boat's speedometer appears to have been broken, but the engine was being run at 4,000 rpm - meaning that with five passengers on board it could have been going as fast as 45 mph, court papers claimed.
Smith told investigators they "were definitely heading, like, full speed straight forward" when she first realized the 22-foot boat was about to hit the shoreline.
FURTHER COURT hearings, such as Barkus' Oct. 22 arraignment, are expected to take place in front of District Court Judge William Nels Swandal.
Swandal, of Livingston, was enlisted to preside over legal proceedings involving Barkus, a Kalispell state senator representing District 4, after Flathead County's three District Court judges removed themselves from the case because of their relationships with the veteran legislator.
Before removing herself from the case, Flathead County District Court Judge Katherine R. Curtis signed an order Sept. 9 maintaining the confidentiality of Barkus' medical records.
A series of legal maneuvers that led up to the eventual charges are not considered public record and will remain sealed.
Charges, however, were filed days after Corrigan moved to cancel a suppression hearing following his dismissal of an investigative subpoena seeking Barkus' blood-alcohol level.
Glazier had challenged the subpoena but prosecutors apparently were able to obtain that information from another source, allowing them to proceed with the case.
If convicted on all charges, Barkus could face a maximum penalty of up to 30 years in prison and a $70,000 fine.
And there is a Montana law that clearly states that a legislative seat becomes vacant if the incumbent office holder is convicted of a felony, said David Niss, an attorney with the Legislative Legal Services Office.
"That statute is clear, it is self-executing," Niss said.
He added, however, that it is less clear how an appeal would affect an automatic vacancy.
In all cases of vacated offices, he said, it is up to the county commissioners to fill the office with someone from the same political party as the former incumbent.
In 2004, Barkus was charged with DUI after being stopped by a trooper with the Montana Highway Patrol for speeding, but later pleaded guilty in Lake County Justice Court to the lesser charge of reckless driving. He was fined and ordered to attend a driving-and-alcohol course.
Barkus, who had been pulled over near his home south of Somers, denied driving under the influence of alcohol and said at the time that mental duress over the ill health of his mother was responsible for his driving behavior.
According to Barkus, he was rushing home to get a clear telephone signal for an emergency phone call and actually got word of his mother's death during the traffic stop.
Barkus, who reportedly twice refused to take a breath test during the 2004 incident, later told the Inter Lake he had consumed "a couple glasses of wine" with dinner some time before.
Reporter Nicholas Ledden can be reached at 758-4441 or by e-mail at firstname.lastname@example.org