In October, a western Iowa man drove his pickup truck across the center line of Nebraska Highway 36 near Cunningham Lake and, at 55 mph, ran headlong into a sports car carrying two Council Bluffs men, killing them.

Tony Kenkel, 29, had been drinking but, his attorney says, not to the point of stumbling drunkenness.

The Earling, Iowa, man had been on his phone — though attorneys have different explanations for whether that was a factor.

He claimed to have been confused by abandoned highway lanes in the area — although Omaha police investigators disputed whether Kenkel would have been able to see the abandoned lanes in the darkness of that October night.

And finally, when Omaha police came into the interrogation room to tell him his blood-alcohol content, Kenkel had a strange reaction.

Told his breath had registered at .08, court records show, Kenkel shot to his feet and pumped his fist in “jubilation,” like a pitcher who had just fired strike three.

The problem: It is illegal for anyone in Nebraska to drive with a blood-alcohol content of .08 or higher.

The other problem: Kenkel had just caused the crash that killed two men.

All of those details were laid out in court this week as Kenkel pleaded no contest to two counts of manslaughter in the Oct. 13 crash that killed Joseph W. Daniels and Thomas D. Greise, both 21. Manslaughter is the unintentional killing of another during the commission of an illegal act.

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Judge Thomas Otepka will sentence Kenkel in October. Under a plea bargain, both the Douglas County Attorney’s Office and Kenkel’s defense attorneys have agreed to recommend that Kenkel serve his sentence for both men’s deaths at the same time. If the judge follows that recommendation, Kenkel, who had no record, would serve a maximum of 10 years in prison.

According to court accounts:

Kenkel had been eastbound on Highway 36 while traveling from a wedding reception in Bennington to his home in Earling, Iowa, near Harlan.

An Omaha police analysis of his phone showed that the phone was “unlocked” and in use from 7:32 p.m. through the time of the crash: 7:35 p.m. Kenkel’s attorney, Steve Lefler, said Kenkel was using his phone to play music through his pickup truck’s audio system.

Prosecutor Ryan Lindberg, a deputy Douglas County attorney, said there is evidence that Kenkel had accessed a messaging app on his phone. Lefler countered that the defense found no evidence that Kenkel had actually sent any text messages.

As Kenkel approached 96th Street, his pickup truck veered into the westbound lane. Kenkel ran into Daniels’ Mitsubishi 3000 GT at 55 mph.

Kenkel later told police that he believed Highway 36 was a four-lane highway — two lanes in each direction — and that it was safe for him to pass.

Lefler argued that Kenkel was confused “in the twilight” of 7:35 p.m., the time of the crash. Lindberg said it was dark. Weather-service records show the sun set at 6:46 p.m.

Both Lindberg and Omaha police crash investigators questioned whether Kenkel pointed to the abandoned lanes as a sort of post-crash spin to try to excuse his actions. The road has several reflective posts blocking off those lanes. The abandoned lanes are weed-strewn and barely visible at night.

Either way, Lindberg said, Kenkel was driving distracted and after drinking.

Lefler said the plea bargain is a fair resolution — considering that Kenkel has no record and considering that his blood-alcohol content was .08.

Lefler said Kenkel’s fist-pump was not reflective of his remorse for his actions. He attributed that reaction to the pressure of being in a police interrogation — and Kenkel’s mistaken impression that it is legal to drive with a blood-alcohol content of .08. Under state law, any driver with a BAC of .08 or more is driving drunk.

“As you can imagine, he’s devastated that two people died at his hands while he was operating a motor vehicle,” Lefler said. “I don’t think it’s contradictory or hypocritical for him to feel bad that two people died and to also worry about what happens to him (as far as sentencing). ... He is a good man who comes from a wonderful family.”

Lindberg said Daniels and Griese were good men from wonderful families, too. That night, the two young men had been traveling to look at a van that Daniels was thinking about fixing up and flipping for a profit. Daniels would have had no chance to react and avoid Kenkel’s truck.

“They’re both 21,” Lindberg said. “They’re young guys with their lives ahead of them and then, out of nowhere, this happens. ... These kinds of cases are devastating.”

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Reporter - Courts

Todd Cooper covers courts, lawyers, trials, legal issues, the justice system and government wrongdoing for The World-Herald. Follow him on Twitter @CooperonCourts. Phone: 402-444-1275.

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