Attorney says Amy Senser didn't know she hit a man, so her case should be dismissed

Amy Senser (Hennepin County sheriff's office)

The prosecution's case against hit-and-run defendant Amy Senser is a mishmash of supposition and theory, none of which proves she knew she'd struck and killed a man in August, her lawyer said in a motion filed Friday.

In the motion asking a judge to dismiss the case, defense attorney Eric Nelson said Senser's activities after the accident - including parking her damaged car in her driveway for all to see and dozing off on a couch on the porch - were those of a person unaware she'd even been in an accident.

Nelson wrote that the two counts of criminal vehicular homicide Senser faces "must be dismissed for lack of probable cause because the state's insufficiency of evidence makes it unfair and unreasonable to compel her to stand trial."

Senser, 45, of Edina, is accused in the death of Thai chef Anousone "Bic" Phanthavong, 38, of Roseville. Phanthavong was filling the gas tank of his stalled car on an Interstate 94 exit ramp when the wife of former Vikings player-turned-restaurateur Joe Senser struck him with her Mercedes SUV.

Senser has acknowledged she hit Phanthavong. Her defense is that she was unaware she'd struck a person, a factual element Hennepin County prosecutors must prove to win a conviction at a trial scheduled for April 23.

"The misperception in this particular case, within the general public, has been, 'How could she not know she had hit something?' " Nelson said in an interview. "Essentially, what the motion addresses is what the law actually

requires, which is that she knew she hit a person.

"We've never denied...that she knew she hit something, but she just didn't know she had hit a person."

In his 26-page motion, Nelson did not say whether Senser had been drinking before the accident, as prosecutors implied in their criminal complaint. But he said that if she had been, the impairment would have robbed her of the ability to know what she'd done.

"Even if, assuming hypothetically, Ms. Senser was impaired at the time of the collision, this would not assist the state's case as impairment would reasonably negate the element of knowledge to the charged offenses," he wrote.

Prosecutors have until Feb. 17 to file a reply, and both sides will argue their cases at a pretrial hearing before Hennepin County District Judge Daniel Mabley on March 9.

Senser was charged Sept. 15 with one count of criminal vehicular homicide. On Jan. 23, prosecutors amended the complaint to add a second count, alleging that she failed to notify law enforcement as quickly as possible.

The amended complaint added details about Senser's alleged whereabouts and activities on the night of the accident, including that a friend of one of her daughters believed she'd been drinking.

In his motion, Nelson laid out a case that Senser would have had difficulty seeing Phanthavong as he stood in the road. He also said she was driving too fast to have reacted, that she didn't see any damage afterward and that her actions were those of a person unaware she'd hit somebody.

The accident happened about 11:10 p.m. on the Riverside Avenue exit ramp of westbound I-94, which was under construction at the time. Nelson noted that Phanthavong was slightly built - 5-foot-2, 135 pounds - and had on dark clothing.

"The accident scene was dark as it was nighttime, and there were no streetlights illuminating the vicinity of the accident as they had been turned off due to road construction," Nelson wrote.

"The construction signs,

Amy Senser, center, walks out of the Hennepin County Public Safety Facility in Minneapolis with her lawyer, Eric Nelson, left, and her husband, Joe Senser, right, after a court appearance Sept. 16, 2011. (Pioneer Press: Jean Pieri)

barricades, and barrels are all made with highly reflective, orange material which would act to camouflage the flashing hazard lights of a stalled vehicle as the driver is exiting," he wrote.

The impact knocked Phanthavong nearly 40 feet, and he died at the scene. When police and state troopers arrived, they found debris littering the roadway; among the broken bits were parts of a headlight from a Mercedes SUV.

After prosecutors filed the amended criminal complaint against Senser, Hennepin County Attorney Michael Freeman said, "She knew she hit something. It's irrefutable. His blood was all over her car."

Nelson contests the state's claim that Senser's car was damaged so badly that she had to have known she hit somebody.

"The photographic evidence provided by the State Patrol clearly establishes that any blood-like substance on the Sensers' vehicle was minimal and limited to inconspicuous locations," the defense motion says.

In the amended criminal complaint, prosecutors pointed to calls among Senser, her husband and her daughters, and claimed they support the contention she knew she'd been in an accident and had hit somebody.

But Nelson said a map of all her calls that evening, based on cell-tower use, shows "that her driving patterns are more indicative of a driver who is lost or traveling to other locations."

Also, he said her behavior in the minutes and hours after the accident was that of a driver unaware of having been in an accident.

"When Mr. Senser and the girls arrived at the Senser residence, the Mercedes involved in the accident was parked outside in the driveway," he wrote. "No one noticed any damage to the vehicle."

He said that when they arrived home, the Mercedes was parked in the driveway and that Amy Senser was snoozing on a couch on the porch.

"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," Nelson wrote.

Nearly 24 hours after the hit-and-run, Nelson called the State Patrol to tell them that the vehicle involved in the crash was in the Sensers' garage. Nine days later, he gave them a one-sentence statement acknowledging that Senser had been driving it at the time of the crash.

David Hanners can be reached at 612-338-6516.