http://paloaltoonline.com/print/story/print/2013/07/19/driver-who-struck-bicycling-boy-wont-be-charged


Palo Alto Weekly

News - July 19, 2013

Driver who struck bicycling boy won't be charged

Misdemeanor charge of driving with a suspended license pending, deputy DA says

by Sue Dremann

A driver who had a small amount of methamphetamine in his blood when he struck and critically injured a 12-year-old Palo Alto boy will not face criminal charges in the crash, Supervising Deputy District Attorney Cindy Hendrickson said on Thursday.

Luis Felipe Hau of Sunnyvale was driving south on Park Boulevard near Sherman Avenue when he veered into the bicycle lane and struck Sebastian Lerrick on Nov. 5, 2012. Hau told police the sun was in his eyes and he did not see the boy. A blood test later determined that he had a small amount of methamphetamine in his system. He was also driving with a suspended license for not paying a fine, Hendrickson said.

Both factors did not add up to a winnable case under the law, Hendrickson said.

"When a little boy on his bike gets hit by a vehicle and grievously injured through no fault of his own, the tragic nature and unfairness of that incident cry out for someone to be held accountable.

"But not all wrongs can be righted or even addressed by the criminal justice system. We are constrained by the law and by our ethical obligation as district attorneys to enforce the laws fairly and without regard for sympathy or bias for or against any particular party," she said.

The DA's office has studied the case since March. Deputy District Attorney Duffy Magilligan, who is in charge of the case, did an exhaustive search of all permutations of the law for any that could be applied to the case, she said. But ultimately, only a misdemeanor charge for driving with a suspended license with a prior conviction for the same charge could be applied. If convicted, Hau could face up to a year in county jail, she said.

Lerrick was on his way to school at 7:19 a.m. when Hau's Nissan Quest struck him from behind, breaking his bicycle frame in two and damaging the Nissan's front bumper, hood and windshield. The boy was wearing a bike helmet, but he sustained a leg and wrist fracture, a broken jaw, broken teeth and brain swelling, according to a police report. He still suffers traumatic brain injuries, resulting in physical, cognitive, psychological and emotional issues, according to a $17 million claim the family filed against the City of Palo Alto.

Hau told police he was driving at between 25 and 35 mph. The speed limit is 25 mph, Hendrickson said.

Hau's license was suspended in May 2009 for failure to pay a fine, and he was later convicted for driving with a suspended license in September 2009, Hendrickson said.

A toxicology analysis at the time of the November collision found that Hau had a trace amount of methamphetamine in his blood, according to the police report.

But such a trace amount of the drug is not believed to have impaired his driving or contributed to the accident, Hendrickson said. Hau did not exhibit signs of being under the influence and thus cannot be charged under Vehicle Code Section 23153, driving under the influence causing injury.

Similarly, Hau's actions did not constitute reckless driving under the law, she said.

"We could not find a single case where similar driving was found to be 'reckless.' The evidence here supports at most a finding that the driver violated two California vehicle codes: unsafe speed for the conditions, assuming the sun impaired the driver's vision and the safe speed was therefore 0 mph; and improper driving in a bike lane.

Although driving while being blinded by the sun at any speed is unsafe, Hendrickson pointed out that it is a common experience.

"People don't customarily stop in the middle of the road and slam on the brakes because the sun is in your eyes. ... Sometimes bad things happen, and they aren't addressed in the criminal courts," she said.

There is no evidence Hau was speeding. Cell phone records showed he placed calls only after the accident to alert relatives that he had been in an accident," she said.

In coming to its decision, the DA's office realized that not charging Hau in this case would be strongly at odds with public opinion, particularly since he had methamphetamine in his blood, Hendrickson said.

"In situations like this one where there is a disparity between public perception and the law, it can be tempting to file charges and let a jury decide. To do that in this instance would satisfy many people at least for the moment, and make the district attorney's office look strong. But to do so would be shirking our responsibility and our ethical obligation to prosecute cases only when we can say with integrity and belief that the law has been violated and that the only reasonable interpretation of all the evidence points to a defendant's guilt. We simply cannot do that in this instance," she said.

The DA's office has until Nov. 5 to file the suspended-license charge, after which the statute of limitations would kick in, she said. Out of courtesy to Lerrick's family, the DA is not immediately filing charges. Lerrick's father wants to look at options for redress regarding filing other charges. He could possibly get a state Attorney General's opinion regarding additional charges, but Hendrickson said it is unlikely the Attorney General's office would instruct any changes. Her office met with Lerrick's father on Wednesday, and he strongly disagrees with the DA's opinion, she said.

"They are dealing with a horrible tragedy," she said.

Lerrick's father could not be reached by press time. The family's claim against the City of Palo Alto alleges negligent design of the bike route on the road.

Staff Writer Sue Dremann can be emailed at sdremann@paweekly.com.

Comments

Posted by Disgusted!, a resident of Another Palo Alto neighborhood
on Jul 18, 2013 at 4:13 pm

[Post removed by Palo Alto Online staff.]


Posted by registered user, RMRN, a resident of Midtown
on Jul 18, 2013 at 10:07 pm

I am frustrated to realize that we have decided to allow such dangerous vehicle operation without real consequences. At minimum, anyone who seriously injures someone through careless driving should lose their driving privileges. This makes the bike lane sound like a dangerous place.


Posted by registered user, rick, a resident of Midtown
on Jul 18, 2013 at 11:23 pm

Can you seriously injure someone through *careful* driving?


Posted by registered user, Alphonso, a resident of Los Altos Hills
on Jul 19, 2013 at 6:34 am

Bad decision - anytime a driver hits someone in a bike lane or a crosswalk there should be a penalty, even if it is 15 days of community service. Stop excusing bad drivers!


Posted by registered user, Eva_PA, a resident of Ventura
on Jul 19, 2013 at 11:10 am

I am aghast that the DA doesn't think they can get more than a misdemeanor conviction from this case. The driver admitted that he was going 25-35 mph in a 25 mph zone AND there was a trace amount of a methamphetamines in his system AND he hit a child riding in the bike lane. "We could not find a single case where similar driving was found to be 'reckless.'"

Hitting a person in the bike lane is only a misdemeanor???

I am so saddened for the Lerrick family and can't imagine the pain they must be feeling after dealing with the tragedy and now being told that there is no justice for their son.

What laws need to be changed so a future crime like this can be prosecuted?


Posted by registered user, teresa_w, a resident of Mountain View
on Jul 19, 2013 at 11:16 am

I'm not sure how this isn't reckless driving. "small amount of methamphetamine in his blood"? Sounds to me like someone went on a binge and didn't sleep for 3 days hindering his ability to safely operate the vehicle.


Posted by registered user, Minimizing Entrophy, a resident of Evergreen Park
on Jul 19, 2013 at 11:28 am

This is why we need the 3 foot passing law that the insurance industry has been fighting against.

Maybe it he can't be prosecuted on a criminal basis but I would like to see him spend some time doing something for the community. He did after all drive without a license and hit a cyclist.

It would be criminal not do do something!!!!


Posted by registered user, Trainspotting, a resident of Charleston Gardens
on Jul 19, 2013 at 6:11 pm

It does sound a bit strange where the DA will NOT prosecute even though the driver has already admitted fault. Perhaps, the DA is afraid to set forward a precedence of charging a crime against a driver who hits a cyclist, let alone with meth in his system?

I don't accept this "lack of evidence" as face value. Then again, I'm not a DA under the scrutiny of internal politics.