MORGANTOWN – A man is suing the West Virginia State Police for the death of a family member.

Benjamin Z. Smith and Trooper Kyle H. Totten III were also named as defendants in the suit.

On June 10, 2010, at approximately 8:30 p.m. John W. Kinder was operating his motor vehicle traveling southbound on Interstate 79 in Marion County when he was stopped for a traffic violation by Totten, according to a complaint filed in Monongalia Circuit Court.

Tracey Kinder claims during the traffic stop, Totten subjected John W. Kinder to various field sobriety tests and after he failed each of the tests, Totten placed him under arrest for driving under the influence of alcohol and transported him to the Marion County Sheriff's Department for processing.

While in custody, John W. Kinder was administered a secondary chemical test by way of Intox EC/IR II, which showed his blood alcohol level to be 0.179, according to the suit.

Tracey Kinder claims John W. Kinder was arraigned and released on a $2,500 personal recognizance bond. He claims Totten then transported him into Monongalia County and "left John W. Kinder on foot somewhere in the vicinity of the 146.5 mile marker on Interstate 79 ..."

Later, he was struck and killed by a vehicle driven by Smith, according to the suit.

Tracey Kinder claims the defendants are responsible for John W. Kinder's death because Totten left him highly intoxicated on and/or near a busy and dangerous interstate roadway.

Tracey Kinder is seeking compensatory and punitive damages with pre- and post-judgment interest. He is being represented by Michael G. Simon and Kevin M. Pearl.

Monongalia Circuit Court case number: 11-C-167

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