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A former corrections captain at Lancaster Correctional Institution sits in Levy County Jail awaiting sentencing on Dec. 4 on a DUI manslaughter conviction in the Jan. 31, 2011, death of Tom Bailey, manager of the Chiefland Golf & Country Club.
A jury on Thursday, Oct. 17, took just over an hour to reject Keith Shane Bush's defense that digestive complications from Type 2 diabetes caused a low blood sugar episode that resulted in him having no memory of driving the wrong way in the southbound lanes of U.S. Highway 19 shortly after 5 a.m. when his pickup truck collided with Bailey's sedan.
Eighth Judicial Circuit Judge Stan Griffis immediately revoked Bush's bond and remanded him to the county jail, despite a plea by Defense Attorney Rod Smith that Bush's 20 year career in corrections and his Type 2 diabetes, which is being treated with insulin, make him a unique prisoner.
Griffis rejected the plea and after asking the prosecutor which charge they would be seeking at sentencing — because Bush cannot be sentenced on both charges for the same crime — set the sentencing date on the DUI conviction. Bush could face up to 15 years in prison on the second-degree felony.
The verdict by three women and three men to convict Bush on charges of negligent vehicular manslaughter while driving under the influence (DUI) and negligent vehicular manslaughter was an indication they accepted Assistant State Attorneys Darla K. Whistler and Bill Ezell's arguments that alcohol consumption ? resulting in more than five blood tests that showed Bush's blood alcohol was as much as three times the state limit hours after the crash ? was what impaired Bush.
In closing arguments on Thursday, Ezell mocked testimony by Bush friend J.D. Holmes III that while the two rode around from midnight until 4:30 or 5 a.m. that Holmes did not smell alcohol or see Bush consume alcohol. Holmes said Bush brought along a cup and a bottle of Diet Coke which he left in Holmes' truck when the two parted ways at Drummond Community Bank in Chiefland.
“He's either got a case of a cold or untruthfulness,” Ezell said, repeating that the two men had been riding in the closed cab of Holmes' truck for several hours. In his rebuttal to the defense's closing argument that the state could not put a drink in Bush's hand, Ezell said to put a drink in Bush's hand “the state would need J.D. Holmes to turn on his friend and turn state's evidence.
“But here, we can do better. We can put it in his blood.”
In addition, the prosecutors used cell phone logs to show that in the minutes leading up to the accident Bush was exchanging text messages with his future wife. His last one to her was at 5:18 a.m. right before the accident.
In closing arguments Ezell used a PowerPoint presentation to chronologically go through the accident, the events afterward and the testimony presented by both sides to bolster their cases.
He repeated the testimony of Sarah Law who called the Levy County Sheriff's Office at 5:11 a.m. to report being run off the road by a truck traveling in the wrong direction on U.S. 19.
“He makes it all the way out to White Farm,” Ezell said. “All the way from Stoney's (Chevron station) almost to Beef O'Brady's.”
He also used the program to hammer home the results of several blood alcohol tests given to Bush following the crash.
“He wasn't passed out. He was drunk,” Ezell said.
Defense attorney Rod Smith of Gainesville said Bush admitted drinking about four ounces of whiskey at 7 p.m., having dinner, then later having a discussion with Warden Shannon Varnes about conducting a sting on another corrections officer suspected of introducing contraband into Lancaster Correctional Institution. The operation was abandoned by 10 p.m., leaving Bush, who worked the night shift, with nothing else to do on his night off.
Smith argued that the prosecution could not put a drink in Bush's hands at any time after dinner.
Smith's defense of Bush relied on expert testimony that the 20-year corrections veteran suffered from gastroparesis ? a condition where the stomach's muscles and pyloric valve shuts off the flow of food in the digestive tract, preventing normal absorption. It can cause problems with blood sugar, according to the defense put forth by Smith. The defense attorney quoted his expert saying that 50 percent of diabetics have the associated condition and many do not know it.
The defense pointed out that the condition is episodic and asymptomatic so Bush did not learn he had it until after the accident.
But Ezell said if Bush had gastroparesis that night “he would have been puking in JD's truck.”
Ezell said while he could not place a drink in Bush's hand, the blood tests proved he had it in his bloodstream. He also pointed to instances where Bush told others he had been drinking that night. He said witnesses also said Bush smelled of alcohol when he was removed from his fiery truck at the accident scene.
Bush's blood alcohol registered .246, three times the state's 0.08 blood alcohol limit, at 7 a.m. when it was drawn at Shands Hospital where he was taken for treatment after the fatal accident.
Bush told the physician assistant treating him for diabetes that he had been drinking that night.
At 8 a.m.. his BAC was 1.96, which Ezell said was consistent with an expert's opinion that the body eliminates 0.05 BAC each hour. The prosecutor said Bush would need to consume nine shots of liquor to reach a .180. “He spent four hours in a car with J.D. (Holmes) fellowshipping.
"This is a good science," Ezell said. "It is a science you can trust."
Testimony also showed that Bush ate at about 7:30 p.m. and did not eat again until he returned to his truck after 4:30 a.m. and realized his blood sugar was plummeting and he consumed a bag of Cheetos
“The texting, the being of DUI, the onset of low blood sugar,” said Ezell. “His ignoring it is reckless.”
"Keith Bush caused the death of Tom Bailey. Texting contributed. Alcohol contributed," Ezell argued in his rebuttal to Smith's closing argument.