RIVERHEAD, Long Island (WABC) -- A Suffolk County judge is expected to drop four charges of the 16-count indictment against a man accused of driving drunk and killing a Boy Scout on Long Island last year.
Andrew McMorris, 12, was hiking with his Boy Scout troop in Manorville when prosecutors say Thomas Murphy was drunk and drove off the road into the group in September 2018.
The ruling is expected Thursday, after the prosecution rests its case. The four charges -- aggravated vehicular homicide, first-degree vehicular manslaughter, first-degree vehicular assault and driving while intoxicated -- require a blood alcohol content above .18, which is now in doubt because of previously unknown notes by the county's toxicologist that suggested Murphy's blood alcohol level may have been below that.
"I hope the jury's been listening as I think they have, and I hope they understand that the People have failed to meet their burden miserably," defense attorney Steven Politi said. "This is a very, very sad, tragic event, and my heart goes out to the McMorrises and all the people that were involved, but unfortunately, a criminal prosecution was not appropriate in this case."
Thomas allegedly refused a breathalyzer test, and blood tests four hours later showed his BAC to be .13. That is still well above the legal limit of .08, but Judge Fernando Camacho told the attorneys Wednesday that the four charges in question are "not legally sustainable."
Even if the charges are dropped, however, the sentencing guidelines do not change. Murphy still faces 8 1/3 to 25 years in prison on the other 12 charges, which include the other top counts of aggravated vehicular homicide and second-degree manslaughter, as well as second and third-degree assault, second-degree vehicular assault and one count of driving while intoxicated.
Still, the family said it feels like insult added to injury.
"Four hours after the crash, you don't need to be a rocket scientist to know what went on before that," mom Alisa McMorris said. "We have his own friends saying that he went off the road. His own friends. And all I think about is Christmas is coming."
The defense is expected to lay out its case starting next week.
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Long Island judge to drop 4 counts against man accused in Boy Scout's death