Former Erie County DA explains why no toxicology report was conducted in case of Grand Island girl

BUFFALO, N.Y. (WIVB) -- Leah Mayer was crossing the intersection of South State Parkway and Broadway when she was hit and killed by a 17-year-old driver who is not facing any charges.

A toxicology report was not administered on the juvenile. Former Erie County District Attorney John Flynn said that in order to get a judge to order a toxicology report, there must be probable cause.

"If it's alcohol, the person's slurring their words, there's beer cans in the back of the car, whatever it may be, then you articulate to the judge and you can do it right there on the spot," Flynn said. "The judge says, yes, then they can take that person to ECMC and have it administered."

A preliminary investigation found no signs of impairment in the 17-year-old. Aside from alcohol, Flynn said a bag of weed, a joint, or a juvenile smelling like marijuana could be probable cause for a report.

However, he said if none were present, a drug recognition expert trained at looking at someone and telling if they're under the influence would have to come to the scene.

Even if a toxicology report is administered, Flynn said that without probable cause families can end up enduring months of false hope.

"Whatever DA is on duty that night, they're not thinking about just that night. They're thinking about a week from now in court," Flynn said. "{If} the defense lawyer is able to convince another judge a week later, or a month later, or six months later that there was no probable cause to have the test in the first place, and, therefore, 'The test, your honor, should be thrown out.' "

The Erie County Sheriff's Office had no comment.