Barkus faces felony charges in boat crash

State Sen. Greg Barkus, R-Kalispell, faces three felony counts related to a boating accident on Flathead Lake near Bigfork on Aug. 27.

Barkus, 62, turned himself in at the Flathead County Justice Court on Oct. 7 after a District Court judge issued a warrant for his arrest earlier that morning.

Prosecutors allege Barkus' blood alcohol level was 0.16 — twice the legal limit for driving — about 1 hour and 45 minutes after the 10:20 p.m. crash and 0.12 about four hours after the crash.

Barkus faces one count of criminal endangerment and two counts of negligent vehicular assault — all felonies. If convicted on all charges, Barkus could face a maximum penalty of up to 30 years in prison and a $70,000 fine.

Five people, including Barkus, his wife Kathleen, Montana Rep. Denny Rehberg and two of Rehberg's staff, state director Dustin Frost and deputy-chief-of-staff Kristin Smith, were aboard the 22-foot speedboat when it hit a rocky shoreline at Wayfarers State Park. The boat hit at an oblique angle at about 40 mph and came to rest some distance above the water.

Frost, the most severely injured, was in a coma for 10 days and continues to recover from serious brain trauma. Rehberg suffered a broken ankle and fracture around his eye. Barkus broke his pelvis and underwent surgery at Harborview Medical Center in Seattle. Smith and Kathleen Barkus suffered less serious injuries.

Barkus has said he has no memory of the boat crash. His last memory from the night was of stepping into his boat after dinner at a Lakeside restaurant, then motoring across the lake back to the east shore, he told the Daily Inter Lake last month.

"I have no recollection of the accident whatever," he said at the time. "It's surreal."

Barkus also maintains he was not impaired when the crash occurred, according to a statement released by his attorney, Todd Glazier.

Justice of the Peace David Ortley released Barkus, a 29-year resident of the Flathead, on his own recognizance following his initial court appearance. Barkus, sitting in a wheelchair, was read the charges against him and informed of his rights.

Deputy Flathead County attorney Alison Howard unsuccessfully petitioned to set bail at $30,000, saying "it seems more than fair at this point."

"Are you serious?" Glazier immediately responded.

Barkus was booked and released from the Flathead County Detention Center on conditions — including that he not consume alcohol or talk with witnesses.

The state's blood-alcohol evidence is expected to be challenged.

"We have reviewed the information and the alleged blood alcohol content levels," Glazier's statement said. "We adamantly disagree with those alleged levels set forth in the charging document. We have several witnesses that will testify that Mr. Barkus was not impaired at the time of the accident."

According to court documents, Barkus and his passengers left The Docks restaurant in Lakeside shortly after 10 p.m. on Aug. 27 to return Rehberg to the Marina Cay hotel in Bigfork. The restaurant tab and a statement by a waitress allegedly indicate Barkus had two drinks containing hard alcohol, possibly Scotch, followed by several glasses of wine. Information provided by Smith seems to support those allegations.

"And so I remember Greg had… one of those [hard drinks], and then after that I saw him drinking red wine," Smith told investigators. "They had bottles of red and white wine out, um, you know, with drinks. So I saw him — he was basically drinking, at least what I saw, red wine for the rest of the night."

Glazier, however, presents a different version of what occurred.

"In fact, the dinner receipt will show that Mr. Barkus did not consume enough alcohol to be impaired when he left the restaurant shortly before the accident, nor was there any alcohol aboard the boat," Glazier said in a statement.

For his part, Rehberg said in an Oct. 7 statement that he was 'surprised" to learn the results of Barkus' blood-alcohol test.

"He didn't appear to be impaired to me when we got on the boat for the return trip to Bigfork," Rehberg said. "There is, of course, a presumption of innocence in our system of justice, and the charges made today by the prosecutors are now in the hands of the court. I'll continue to provide whatever information I can to the authorities."

Barkus is believed to have used a GPS system to navigate from Lakeside to Bigfork that night. His boat was not equipped with a spotlight or other lighting to illuminate its path.

Smith told investigators that at one point, Barkus appeared to be confused about their location, thinking they were headed toward the Flathead River rather than Bigfork, and Barkus made a sizable course correction to the right, .

The boat's speedometer appears to have been broken, according to court documents, but the engine was running at 4,000 rpm at the time of the crash, meaning the boat could have been going as fast as 45 mph.

Smith told investigators they "were definitely heading, like, full speed straight forward" when she first realized they were about to hit the shoreline.

Barkus is scheduled for an Oct. 22 arraignment in front of District Court Judge William Nels Swandal, of Livingston. Swandal was enlisted to preside over the legal proceedings after Flathead County's three district court judges removed themselves from the case because of their relationships with the veteran legislator.

There are political ramifications to the case. Montana law clearly states that a legislative seat becomes vacant if the office holder is convicted of a felony.

"That statute is clear, it is self-executing," said David Niss, an attorney with the Legislative Legal Services Office, in Helena.

The statute is less clear about how an appeal would affect an automatic vacancy, Niss said. Filling a vacant office with someone from the same political party as the former office holder is up to the county commissioners, he added.

Barkus' second senate term ends in 2012, and he said last week that he plans to finish his term if possible. The retired businessman serves on the legislative interim audit committee and is a liaison to the Montana Board of Investments.

In 2004, Barkus was charged with a DUI after being stopped by a Montana Highway Patrol trooper for speeding near Somers. Barkus later pleaded guilty in Lake County Justice Court to a lesser charge of reckless driving. He was fined and ordered to attend a driving-and-alcohol course.