Night of the crash, McCarthy went to Bozeman Deaconess Hospital to check on the status of Soule's blood draw.
McCarthy said he photographed Soule's shoe at the hospital.
McCarthy also photographed an injury on Soule's shoulder while Soule was in the ER.
Kitzmiller's turn to question McCarthy. But before he can start, Salvagni calls for a 15-minute recess. Be back in a few.
Break is over. Kitzmiller beginning to ask McCarthy questions about his involvement with the Soule crash.
McCarthy saw a brown shoe on the driver's side floor of the truck while he was investigating the scene.
After spending about an hour and a half at the crash scene, McCarthy went to Bozeman Deaconess Hospital.
While at ER with Soule, McCarthy said he found a brown shoe that was similar to the one he saw at the crash scene. He photographed the shoe.
After he took the photographs, McCarthy said the shoe was left at the hospital.
Neither McCarthy or Barcus cited/ticketed Soule the night of the crash.
Kitzmiller asking McCarthy about a number of interviews, up to 5 now. McCarthy said he believes they were all recorded, but the recordings no longer exist.
It was a total of six witness interviews/statements that McCarthy said were recorded but that those recordings no longer exist.
McCarthy is finished. Avignone is now going to get his final witness, another Montana Highway Patrol trooper.
Montana Highway Patrol Trooper Ace Allen Meskimen now on the stand.
Meskimen was an assisting officer investigating Soule's crash.
Meskimen helped another trooper record and interview one of the first witnesses on scene. Meskimen doesn't know where that recording is.
Meskimen is finished on the witness stand, marking the end of Avignone's witnesses.
Kitzmiller has one witness, former Gallatin County Chief Deputy Attorney Todd Whipple who filed the affidavit in the case in 2012.
Kitzmiller decides not to have Whipple testify, however.
Salvagni decides to call it a day and resume tomorrow morning with oral arguments from attorneys.
Salvagni asks attorneys to submit to him proposed orders that they would issue if they were the judge.
Salvagni - "This is all new to me. That is why I'm not inclined to make any kind of ruling here today."
Back in Gallatin County District Court where the second day of Michael Soule's motions hearing is beginning.
Today, Judge Mike Salvagni will hear arguments from attorneys on each of the 15 motions filed by Soule's defense attorneys.
First motion defense attorney Lisa Banick is addressing is motion to dismiss because state didn't provide Soule with a prompt initial appearance following his arrest.
Banick: On night of crash, Banick is arguing that Trooper Glen Barcus read Soule the implied consent advisory, which says he is arrested.
Barcus testified yesterday that it was never his intention to arrest Soule & he never restrained him. He only ready the advisory as a formality.
Salvagni – Factually how was he under arrest? He was restrained?
Banick – You don’t have to have physical restraint in Montana to effectuate an arrest. Verbal is sufficient.
Banick: To allow an officer to use that law to get evidence w/out a warrant and then to say, ‘ I was just kidding I didn’t really mean it,’ it would undermine the policies behind it…an arrest is a serious manner.
Banick: We can't undo the prejudice that has been done.
Gallatin County Chief Deputy Attorney Eric Kitzmiller is now giving his arguments against the motion to dismiss.
Kitzmiller: State law says that there are three elements to an arrest: authority to arrest, assertion of that authority and restraint of person under arrest…those elements are simply not met.
Kitzmiller: There was no restraint of Soule by any officer the morning of the crash. He was unconscious.
Kitzmiller: Trooper Barcus read Soule his implied consent notice because he was "following his standard procedure."
Kitzmiller: When someone's placed under arrest, there are formal law enforcement procedures...there were no officers left in the room to make sure Soule didn't leave or to take him to jail.
Kitzmiller: There was no arrest of Soule the night of the crash, so he was not required to have an initial appearance.
Banick now addressing the second motion, which asks judge to suppress any evidence obtained by state's "warrantless search & seizure" at the hospital.
Banick said she was disturbed by troopers' testimony yesterday when they said they searched Soule's unconscious body at the hospital.
Banick: “To me, it shocks the conscious and just violates the protections that are well numerated in our search and seizure laws.”
Banick: Troopers had no right to be at hospital that night. They should have gotten a search warrant.
Banick: Troopers had plenty of time to get a warrant.
Kitzmiller – Troopers were lawfully present in the ER the night of the crash. No one asked them to leave.