Was fatal wrong-way crash due to date-rape drug, not DUI?

Police say the driver, Kelli Smith, was impaired. But she says that's only half the story.

A wrong-way driver who killed a father of two may get a new trial. An appeals court has tossed out Kelli Smith's conviction.

Kelli Smith was driving the wrong way on I-70, about halfway between Columbia, Missouri, and St. Louis.

The crash killed a man and injured Smith.

In her mangled SUV, paramedics find Smith unconscious, her feet bare and her pants crumpled in the back seat.

The driver she hit head-on, Thomas Sullivan, is killed. Cops say it's a clear case of drunken driving, and charge her with involuntary manslaughter.

But was Kelli Smith really drunk -- or was she drugged?

"The last memory she has is setting her drink down," said Smith's defense attorney Jennifer Bukowsky.

In a stunning defense, Bukowsky says she may have been slipped a date-rape drug, causing her to drive on the wrong side of the highway.

Jim Smith, Kelli's father, believes Kelli was raped.

The fateful night begins with a visit to a bar near the campus of the University of Missouri in Columbia.

Kelli Smith, then 22 years old, is the designated driver. She drops off some friends at a home where a party is underway.

At 2:39 a.m., Smith leaves the house and drives away. What happened shortly after that is a blur.

"Something dramatically changed with Kelli to where all of a sudden she's heading in this path across the state of Missouri," said attorney Jennifer Bukowsky.

Smith gets on Interstate 70, heading east toward St. Louis. Then somehow she ends up on the wrong side of the freeway, traveling westbound in the eastbound lane.

Fifty miles from her home, Smith plows into autoworker Thomas Sullivan's car, killing him instantly.

She's unconscious and is rushed to the hospital. There doctors find what appear to be "finger pry marks" on her inner thighs.

But Smith can't remember a thing. She suffered a brain injury so severe it wiped out her memory of the accident and other things about that terrible night.

Seven and a half hours after the fatal collision troopers take a blood sample. Her blood-alcohol-content level was 0.085, barely over the legal limit.

Smith was charged with involuntary manslaughter. Her lawyer claims Smith is a victim of a sexual assault.

"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 could be hand prints, that could have occurred during the sexual assault," said Bukowsky.

Smith's lawyer tells station affiliate KTVI cops made a critical mistake: Waiting seven and a half hours to draw blood caused the test to miss traces of a date-rape drug. And she says police could have contaminated the sample.

"It was in his car for 59 hours and 51 minutes as 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," said Bukowsky.

The rape test kit taken at the hospital shows no semen, but Bukowsky claims there was damage to Kelli's cervix.

During cross-examination she tears into lead investigator Eric Stacks, asking about possible evidence of a sexual assault.

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

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

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

Stacks: "No. Explain that to me please."

"It infuriated me because this is the man that just testified that he, as a so-called sexual assault expert investigator, ruled out rape. He also said he gave the case a 'look-see,'" said Bukowsky.

Jurors deliberated for more than 10 hours but were deadlocked. They eventually vote to convict Kelli Smith on a charge of first-degree manslaughter. One juror claims she caved in to pressure from the other jurors.

Thomas Sullivan's brother, speaking at the sentencing, said Smith "went out with the intent to drink, she drank, she didn't stop. Kelli is not the victim. She is the aggressor."

The judge sentenced Kelli Smith to five years in prison. But this case is far from over.

"We want to know who was responsible, who set all these events in motion that early morning of February 25th," said Jim Smith, Kelli's father.

Smith appeals the conviction. Her attorney said that "law enforcement's failure to refrigerate the blood sample for 10 days after its collection caused the blood to ferment, resulting in a higher B.A.C. result at the time of the test than actually existed at the time of the draw."

"Her first reaction when learning someone had died was that she wished God had taken her," said Bukowsky. "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 those around her, and she has."

Today Kelli Smith is free on bond, even going to baseball games with her family. But her father says Kelli is keeping the family of Thomas Sullivan uppermost in her mind.