A Colorado judge has dismissed charges against a man who caused a fatal car crash, because the victim, at 8½ months of a pregnancy, had only been scheduled for a C-section to be born, and that had not yet happened at the time of the crash.

“‘Person’ is a defined term for purposes of the homicide statutes,” wrote Judge Richard Gurley in a March 20 decision in the case involving the death of Lileigh Lehnen, the born-alive daughter of 26-year-old Shea Lehnen.

“The definition states that ‘person,’ when referring to the victim of a homicide, means a human being who had been born and was alive at the time of the homicidal act,” the judge said.

Lileigh Lehnen was born during an emergency C-Section after the November 2007 accident that was triggered when Logan Lage, 24, apparently drove on the wrong side of the road and crashed his vehicle headon into Lehnen’s car.

Lileigh Lehnen lived several hours and died of asphyxia, according to Mesa County Deputy Coroner Rob Kurtzman, who concluded the baby’s death was a homicide and said the collision damaged the mother’s placenta, limiting blood flow to the newborn.

Lage faced a series of charges because of the baby’s death, but his public defender, Will McNulty, challenged them on the grounds that the state law excluded the baby from the possibility of being a homicide victim.

The judge’s order, which was posted online by the Grand Junction Daily Sentinel, said Colorado law doesn’t allow Lileigh Lehnen to be considered either a “person” or a “child” at the time of the crash.

“I’m not happy at all,” District Attorney Pete Hautzinger told the newspaper. “It’s a very murky part of the law.”

On the newspaper forum, the comments were running mostly on one side.

“He murdered that family’s child,” wrote JM. “Only his weapon of choice was a vehicle. … I think that it is disgusting that we, as a society, allow people to get off with killing and hurting children.”

“I would say it’s high time that we de’MURK’ify Colorado law in such cases. … If I was Lileigh’s mother, I would appeal. We should push for legislation to correct this gross error in our state law,” added Aunt B.

That’s exactly what spokeswoman Kristi Burton of Colorado for Equal Rights has planned.

Her organization is proposing a change to the state Constitution that would declare the term “person” shall include “any human from the time of fertilization.”

“This outrageous ruling is a clear example of they hypocrisy of Colorado law,” said Burton. “If a child like Lileigh is not a person, what is she? There is no other answer. However, this case effectively illustrates the current state of our laws in Colorado and across the nation. Some states would recognize Lileigh’s rights as a person, yet Colorado does not. It’s high time we change this and clarify what a person actually is in Colorado. Our Human Life Amendment can lay the needed foundation to bring justice to people like Shea and Lileigh Lehnen.”

Burton noted that had the same accident happened in California, the responsible party could have been charged with Lileigh’s death.

“Once the Colorado Human Life Amendment gets on the ballot, it will go a long way in protecting people who currently have no protection under Colorado laws. This amendment is supported by common sense and by science. As Dr. Jerome LeJeune, an internationally recognized geneticist, wrote, ‘Life has a very, very long history but each individual has a very neat beginning: the moment of its conception,'” Burton said.

Colorado for Equal Rights is collecting signatures to put the issue on the November ballot. Several states have  similar efforts. Pro-life activists view the strategy as a direct attack on the 1973 Roe v. Wade decision in which the U.S. Supreme Court ruled the U.S. Constitution grants a right to abortion.

Burton said it appears at this point Colorado’s plan has the best chance of reaching the ballot. The state Supreme Court has approved the initiative’s wording and form, and the group already has collected about 40,000 petition signatures of the 76,000 needed by May.

The plan also has earned the support of one-time GOP presidential candidate former Arkansas Gov. Mike Huckabee and members of the Colorado Legislature.

State Sen. Greg Brophy Wray told a Denver television station, “Clearly it’s always the right time to take the stand for the sanctity of life.”

Colorado’s plan would grant personhood to the unborn from the moment of fertilization, meaning state and local laws protecting any individual life would be applied to the unborn. It targets a loophole the U.S. Supreme Court created when it issued the original Roe v. Wade opinion.

The opinion said: “(If the) suggestion of personhood [of the preborn] is established, the [abortion rights] case, of course, collapses, for the fetus’ right to life is then guaranteed specifically by the [14th] Amendment.”

While the change in the state constitution would not also change the criminal statutes at issue in this case, Burton said it is a first step towards having those reflect the lives of the unborn.

“The plain language of the definition could not be any clearer,” wrote Gurley. “To qualify as a ‘person,’ three conditions must obtain at the time of the homicidal act: (1) the victim is a human being; (2) the victim has already been born; and (3) the victim is still alive…

“The only act in this case that could possibly qualify as the homicidal act occurred when Defendant drove on the wrong side of the road at high speed and collided with a vehicle being operated by Shea Lehnen. The People do not suggest otherwise. Lileigh Lehnen had not yet been born at this time,” the judge said.

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