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A driver whose SUV struck and killed Benno Big Back Jr. nearly a year ago likely was unable to avoid him after he jogged in front of her vehicle, according to a collision reconstruction report commissioned by her defense team.

During a court appearance Wednesday, prosecutor Jason Marks filed amended charges against Emily Levens, who was arrested and charged with killing Big Back.

The new charges dropped a felony for vehicular homicide while under the influence, although Levens is still charged with a felony for allegedly driving away from the scene after a nearby resident told her she was calling 911.

In addition to her remaining felony, Levens is also charged with misdemeanors for driving under the influence, driving with a suspended or revoked license and driving without insurance.

According to a court affidavit, a woman called 911 late on Feb. 24 after hearing a crash outside her home near Mount Avenue and Hollis Street. The caller told dispatchers she saw a man’s body in the street with a woman standing over it holding a phone. When the witness told the woman she was calling for help, the woman got in her SUV and drove away.

Officers followed a trail of vehicle fluid to Levens’ nearby home. Levens allegedly smelled of alcohol and scored poorly on field sobriety tests. In a later interview, she allegedly told detectives she had been drinking at a casino before she drove home, and didn’t see Big Back until she hit him.

Marks told a judge Wednesday he made the decision to remove the vehicular homicide charge after reviewing the crash reconstruction report and then receiving a second opinion from a Montana Highway Patrol crash investigator. He declined after the hearing to discuss what in the report caused him to change the charges.

A copy of the reconstruction report obtained by the Missoulian concluded that Big Back likely ran out into the street in the middle of the block, not leaving Levens enough time to avoid hitting him.

David Rochford, an independent traffic accident investigator based in Idaho, said he used industry-standard formulas regarding the “throw distance” of a pedestrian struck by a vehicle. With those, he determined Levens had been traveling between 29 and 34 miles per hour on the 30 mph eastbound lane of Mount Avenue when she hit Big Back.

The damage to the front of Levens’ vehicle didn’t stretch to the windshield, which the investigator wrote indicated a relatively low speed of impact.

Based on where Big Back’s body ended up, Rochford concluded he had been walking very quickly or jogging at the time he was hit. Medical examiner photograph show Big Back wearing dark clothing and shoes with no reflective material when he was hit, the report said.

According to the independent crash report, Levens also told a detective she thought Big Back had come from her left.

Rochford’s reports indicates he believed Big Back, who was heading home at the time, may have crossed onto Mount in the middle of the block through a break in an ice berm along the sidewalk, then crossed the road at an angle toward Hollis Street.

If that is the case, the investigator said there would have been “no lighting to reveal Mr. (Big Back’s) location or movement.”

“Consequently, it is highly unlikely that a driver in Ms. Levens' situation would have been able to see Mr. (Big Back) before he entered the eastbound lane,” Rochford wrote. “Even if Ms. Levens had seen him at this point, it would not have been possible to react and avoid the collision in such a short time period.”

Levens is scheduled for a change of plea hearing on her current set of charges on Feb. 21 in Missoula County District Court.

Big Back’s mother Patricia Spotted Wolf sent a letter to County Attorney Kirsten Pabst earlier this week voicing her concern about the vehicular homicide charge being dropped. She said while Marks has routinely met with the family and shown them documentation regarding the case, she wanted to know if another prosecutor could be assigned “who would fight for me and my son.”

“We lost a huge love that is not coming back and she took this from us when she got behind the wheel drunk and hit and killed my son,” Spotted Wolf wrote. “If the vehicular homicide charge is removed it seems like we would be ignoring the fact that she took a life.”

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Law and Justice Reporter

Crime reporter for the Missoulian.