In seeking a dismissal, the attorney also said evidence shows Amy Senser didn't know she'd struck someone.
The man who was struck and killed by Amy Senser on a Minneapolis freeway ramp last summer had "high amounts" of cocaine in his system at the time of his death, according to a motion filed Friday seeking to dismiss the charges.
The motion contends that "blatantly manipulated" evidence prosecutors have leveled against Senser still fails to prove she knew that she had hit Anousone Phanthavong, 38, as he put gas in his stalled car on the on-ramp to Interstate 94 at Riverside Avenue. It also cites an autopsy report that revealed Phanthavong had the stimulant in his system.
"A person with this amount of cocaine in his or her system is likely to be moving erratically and unpredictably," Senser attorney Eric Nelson wrote in a 26-page document that seeks to dismiss criminal vehicular homicide charges against his client.
Senser, 45, who later admitted to being the driver, is scheduled to stand trial April 23.
Hennepin County attorney's office spokesman Chuck Laszewski declined to comment on the new allegation. Phanthavong's family and their attorneys could not be reached for comment.
Nelson's motion was filed on the same day that civil attorneys met behind closed doors to discuss evidence in the wrongful-death lawsuit that Phanthavong's family has filed against Amy Senser and her husband, Joe, a former Minnesota Vikings star. The case had been placed on hold while the criminal investigation continued.
In the motion, Nelson blasted new evidence that prosecutors presented last week, arguing that it shows only half of the incoming and outgoing cellphone calls made that night, as well as an accident reconstruction that he said makes unsubstantiated claims. Phone calls made by Joe Senser the next morning to two addiction treatment centers were presented as evidence only to "inflame and prejudice," Nelson said. Joe Senser placed the calls to cancel a speaking engagement at Minnesota Teen Challenge, he said, and the other to get in touch with a friend who runs a facility in Florida.
According to the motion, Senser's cellphone records show that she may have been on the phone at the time of the accident, and that she did not make another phone call for 10 minutes after the time that the accident likely occurred. The next 15 calls were incoming from her daughter or her daughter's friend, who Amy Senser was supposed to pick up from a concert at Xcel Energy Center in St. Paul. Amy Senser got lost and Joe Senser eventually picked up the girls, the motion said.
The motion points out that Senser made no effort to conceal the damaged Mercedes, which was parked in the driveway of their Edina home, and the fact that she was sleeping on the couch when her husband and children arrived home.
"It is not reasonable to infer that a person who just intentionally left the scene of an accident involving the death of a person would casually fall asleep on a couch," he wrote.
Nelson based his legal argument on the Minnesota Supreme Court's 2010 reversal of a criminal vehicular homicide conviction in the case of Mohammed Al-Naseer. Al-Naseer was convicted of criminal vehicular homicide and sentenced to four years in prison for leaving the scene of an accident in the June 2002 death of Kane Thomson, 26, of Minnetonka. Thomson was changing a tire on Hwy. 10 in Clay County when Al-Naseer struck and killed him without stopping.
After his conviction and a lengthy appeals process, the Minnesota Supreme Court ruled that the state must prove Al-Naseer "knew he had been in an accident with a person or a vehicle."
The motion comes on the same day a wrongful-death lawsuit that Phanthavong's family filed against the Sensers resumed with a private meeting to discuss evidence.
Phanthavong family attorney Jim Ballentine met with the Sensers and their attorney, Brian Wood, in Judge Bruce Peterson's chambers to talk about evidence-gathering. Ballentine said the results of the discussion are confidential. A follow-up hearing has not been scheduled and the case is continuing.
Abby Simons • 612-673-4921