Was a wrong way driver fleeing a rape?

kelli smith 1ST. LOUIS, MO (KTVI) -  A wrong way driver who killed a father of two, may get a new trial.  An appeals court tossed out Kelli Smith's conviction after her attorney argued she is a victim.

On February 25th, 2012, Kelli Smith was driving the wrong way on I-70, about halfway between Columbia and St. Louis.

Oddly, she wasn't wearing pants or even underwear.  And she had no purse or phone when she hit another car head on.  The crash killed a man and injured Smith.

Doctors noted what appeared to be finger pry marks on her inner thighs.  Defense attorney Jennifer Bukowsky said, “A doctor and four nurses felt so strongly about this that they took the very highly unusual step of performing a rape examination on an unconscious patient to preserve that evidence.”

smith's carThe evening had begun at a bar near the M.U. campus.  Smith was the designated driver.  Bukowsky said, “The last memory she has is her setting her drink down.”

Smith and a friend were invited to a house party where seven guys were staying.  Mysteriously, Kelli left the area twice, the last time around 2:39 a.m.   About an hour later she crashes.

Attorney Bukowsky contends Kelli Smith wasn't drunk on alcohol, she thinks Smith was slipped a date rape drug, then regained consciousness enough to escape after being assaulted.

inner thigh marksBukowsky said, “Something dramatically changed with Kelli to where all of the sudden she's heading in this flight path across the State of Missouri.”  She said Missouri Highway Patrol investigators were not interested in looking into what happened as far as a possible drugging or rape.  She explained that they didn't seize Kelli Smith's pants, found crumpled in the back seat.

Bukowsky added, “One of her high heeled shoes was found back here too and it’s above that that we have these kind of markings, which appear to me that could have been hand prints that could have occurred during the sexual assault.”

The car was a possible crime scene that Bukowsky says investigators ignored.   She questioned investigator Eric Stacks over her clients internal injuries at trial.

Trial Testimony

Bukowsky: In your experience with car crashes how many times do you see injuries to a cervix?

Stacks: I don't know what you're asking me, to a cervix?

Bukowsky: You don't know what a cervix is?

Stacks: No. explain that to me, please.

Bukowsky then told me it.. “infuriated me because this is the man that just testified as a so-called sexual assault expert investigator, ruled out rape.  He also said he gave the case a 'looksee.'”

Smith was legally drunk according to the blood alcohol test, but there are questions about how Trooper Miller stored the blood and he appeared to violate Highway Patrol policy.

car ceilingBukowsky explained the tube of blood… “was with Miller in his car for 59 hours and 51 minutes because he drove around and kept it in a heated shed at his house.  Then it was left for about a week in a room in the courthouse.”

Jurors like Gloria Langenecker deliberated more than ten hours, but were deadlocked at 2 a.m.

Langenecker told me, “And we went to the Judge and he says nope, you guys gotta work on it and come up with a decision.”

The next day Langenecker said she caved to pressure to convict.  “I was pushed into being guilty,” she said.

The Missouri Court of Appeals threw out the case in December.  Smith is out on bond waiting to see if she'll face new charges.  She's free for now, but her attorney says she's not celebrating.

tube of bloodBukowsky said, “Her first reaction when learning someone had died is that she wished God had taken her, but since he didn't, she feels that she needs to live her life the best way that she can to improve the lives of all of those around her.  And she has.”

Smith works a full time full time job in Columbia.  Victim, Thomas David Sullivan was coming home to St. Louis from a job in Kansas City.

The Highway Patrol said it couldn't comment on this investigation because Smith's case remains open.

Follow Fox 2’s Chris Hayes on Twitter @ChrisHayesTV