A trucker charged with two counts of manslaughter is looking to dismiss the charges after admitting that Netflix was playing at the time of the crash, but that the screen was flipped around. 

40-year-old trucker, David E. Herring, was charged with two counts of manslaughter after a January 2021 crash took the lives of a recently retired couple in Maine. Herring was indicted in July 2021 and pleaded not guilty at his first court date in September of the same year. He was offered a plea agreement that would have sent him to jail for 10 of his 15 year sentence, but Herring rejected the offer, and the case will likely head to trial, reported Central Maine News.

Herring’s attorney, Rob Andrews, has admitted that his client was indeed distracted at the time of the crash that killed Betsy and Geoff Gattis, but that the distraction was due to a car ahead of him pulling off of the road, and not due to his streaming Netflix. 

Andrews says that his client was driving on the interstate at about 65 mph when a car ahead of him suddenly slowed and pulled off of the highway. Herring’s eyes then followed the car as it pulled off of the road and by the time he looked ahead of him again, it was too late to stop in time to avoid hitting the Gattis’ car. 

Investigations have revealed that Herring was indeed streaming from Netflix at the time of the wreck, but Herring says he was simply using the service as a substitute for radio so that he did not have to flip through radio stations as he traveled through different counties. Herring says that the audio was not a distraction at the time of the crash. 

“In this situation, what he told the state trooper was that the car that was pulling off distracted him,” Andrews said. “When he returned (his attention) back to what was in front of him, it was too late for him to stop the accident. That’s what he told Trooper (Ricci) Cote, that’s what’s in the affidavit.”

“The unknown vehicle in front of (Herring) slowed abruptly and considerably and then went to the right to take the departing ramp to the nearby rest area,” a trooper wrote in the report’s brief narrative. “(Herring) took his eyes off of the roadway in front of him and looked into his side mirror to see where that unknown vehicle was and did not realize that (the tractor-trailer truck and the passenger car) just ahead were barely moving.”

During the initial investigation, Herring told troopers that he had been streaming Netflix on his phone with the audio connected to his truck speakers and the screen facing away from him in a holder down by his knee so that he could not see it.

“Herring informed me the phone had been ‘playing’ and that it plays as he drives but it was ‘flipped around’ because ‘I don’t want to see it,’ ”  Cote wrote in the search warrant affidavit.

Herring has remained consistent in his story that the phone was turned around at the time of the incident throughout the investigation. 

“(Prosecutors) want a jury or a judge to do what they’ve done, which is ignore what he said happened in favor of something that might conceivably be a crime,” Andrews said. “Which is watching Netflix. Except he’s very clear that he was not watching Netflix.”

Herring was driving for K and E Trucking at the time of the wreck, who declined to answer questions about Herring’s employment history with the company. Herring has received previous citations for speeding in multiple states, as well as once in 2019 for using a cell phone while driving. Herring was involved in several crashes over the years. In 2004 he rear-ended another driver, and in 2009 he lost control at an intersection when his truck stalled. In 2014 he rear ended a stopped vehicle when his brakes failed, and in 2015 he rear ended another vehicle because he was distracted by a passenger while driving his car. In 2015, he also skidded in icy conditions and struck another vehicle. 

To fully convict Herring, prosecutors must prove that Herring caused the deaths recklessly or with criminal negligence. Andrews plans on filing a motion to dismiss the current charges, reported SF Gate News.

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