This section contains the nature of the case and procedural background.

Garner (D) was driving his pickup on a four-lane residential street when a small group of children was preparing to cross that street. All but one twelve-year-old, Lisa Uhrenic, stopped. D tried to avoid her but struck and killed her. D's blood alcohol level was .201 one hour after the collision. D was charged with vehicular homicide. Based on skid marks, D was traveling at 43.39 mph on a 35-mph zone. The officer testified that even if D had been traveling at the posted speed limit, the truck would have stopped three feet after striking Lisa as opposed to 26 feet after striking her. The officer testified that the accident would have occurred even if D had been driving at 35 mph but could not say if death would have resulted. Another officer testified that Lisa was the cause of the accident. Other eyewitnesses testified that D was driving properly and that he tried to avoid Lisa but was unsuccessful. The trial court dismissed the charge in that the speed D was driving was the proximate cause of the death and not his intoxication. The state appealed.

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