CAPE MAY COURT HOUSE — A jury will hear the results of a blood test given to Joshua Malmgren in the minutes after the July 31, 2012, accident that left dead cousins Nioami Lazicki, 15, and Ashley Dauber, 13.
Malmgren, who was taken into police custody shortly after the crash, was found to have a 0.183 blood-alcohol content, authorities say. The legal limit is 0.08.
Superior Court Judge John Porto ruled Tuesday afternoon that Middle Township police acted appropriately when they took Malmgren to Cape Regional Medical Center and had his blood drawn without seeking a search warrant.
“The law did not require a search warrant,” Porto said, noting that police at the time had probable cause to believe Malmgren was intoxicated.
Middle Township police Officer Brian Murphy told the court Tuesday morning that he was called to Bayshore Road across from the Green Creek firehouse at 9:17 p.m. to find Malmgren sitting under a tree near the accident.
The young girls had been walking on the side of the road and were struck by Malmgren’s Ford Bronco across from the fire station, police said. They died at the scene. Lazicki's younger sister, Farrahanne, then 14, was able to get out of the way and was not struck.
“Every police officer working in Middle Township was at that scene,” Murphy recalled. While others tended to the victims, Murphy said, he approached Malmgren as he was “sitting and hugging his knees crying.”
Murphy had Malmgren submit to a field sobriety test called the “walk and turn.” Malmgren was told to walk nine steps heel to toe, turn and walk back the same length.
Murphy said Malmgren had difficulty following his instructions. Malmgren’s eyes were bloodshot and his speech was slurred, Murphy said, and he swayed, leaning on a police car at one point. A video of the test was shown to Porto on Tuesday.
In it, Malmgren can be seen talking and walking as police car lights flash around him. Screams can also be heard, though the victims are not shown in the video.
“It was very chaotic,” Murphy recalled of the scene where family and friends had gathered minutes after the accident.
Malmgren, who had a cast on his left arm at the time, was placed in Murphy’s police car and taken to the hospital instead of the police station. He had a broken right hand, but First Assistant Prosecutor Rob Johnson said that injury happened well before the collision, although Malmgren had said he had hit his car with his hand.
Also Tuesday, Porto denied a request by the prosecution to increase Malmgren’s bail, but he imposed additional requirements on the current $400,000 bail amount.
Porto said Malmgren must undergo a mental-health evaluation and a drug and alcohol evaluation, and undergo weekly drug screenings at the courthouse starting Wednesday.
Johnson had asked the judge to increase the bail because he had learned that on April 11, Malmgren had attempted suicide.
“He is going to ... hurt somebody else, seriously injure himself or delay this prosecution,” Johnson said.
But Malmgren’s attorney said his client had never missed a court appearance or incurred any new charges since posting bail.
“He is not a threat to anybody except himself,” defense attorney Ed Weinstock said.
Weinstock said Malmgren has also had his driver’s license revoked and has not driven since the crash.
Both sides agreed to move the start of the first-degree aggravated assault trial to Oct. 14. It had been previously scheduled to begin June 2.
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