Driver who struck bicycling boy won't be charged

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

Editor's Note: The name of the 12-year-old accident victim described in this story has been removed at the request of his family out of consideration for his privacy, as has the name of the driver of the car in light of no charges having been filed relating to the accident.

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.

(Name removed) was driving south on Park Boulevard near Sherman Avenue when he veered into the bicycle lane and struck (name removed) on Nov. 5, 2012. (Name removed) 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, (name removed) could face up to a year in county jail, Hendrickson said.

(Name removed) was on his way to school at 7:19 a.m. when (name removed)'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.

(Name removed) told police he was driving between 25 and 35 mph. The speed limit is 25 mph, Hendrickson said.

(Name removed)'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 (name removed) 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. (name removed) 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, (name removed)'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 (name removed) 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 (name removed) 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 (name removed)'s family, the DA is not immediately filing charges. (Name removed)'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 (name removed)'s father on Wednesday, and he strongly disagrees with the DA's opinion, she said.

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

(Name removed)'s attorney, Todd Emanuel of Redwood City, said he was impressed by the research the DA's office conducted before making its decision, but he has not had the opportunity to view everything the DA had in determining the charges.

"It appears the DA has taken a lot of time to go through the evidence, ... I hope the DA will publicly disclose all of the evidence soon," he said.

But he will pursue a civil case against the City of Palo Alto, the construction company working at the site and possibly against (name removed)'s employer, Izzy's Bagels, he said.

The family's $17 million claim against the city was rejected by Palo Alto on June 6, he said. The claim alleges negligent design of the bike route on the road.

Regarding (name removed)'s family and the DA's decision, "They're obviously disappointed," he said.

"Imagine being a parent and learning that a driver who has methamphetamine in his system, and your child is lawfully riding his bicycle and he gets mowed down. And the driver is not driving legally," he said. "It's difficult to learn he is being charged with what is really the lowest level of a misdemeanor."

But the DA's office can't be blamed for that, he said. It could be one of those cases, as Hendrickson pointed out, where the law doesn't line up with the egregiousness of the driver's actions.

"The civil case is a different ball game," he said.

"When you're designing a road or setting up a construction site ... you have to take into account the human behaviors that will be taking place under these circumstances," he said.

Emanuel has six months to file the civil case, but he expects to file it soon, he said.

"The civil case is important for my client because he deserves and needs reasonable compensation for astronomical medical bills and for his future care. This is a kid who was simply riding his bike to school.

"Palo Alto is full of bike lanes. We all have a responsibility as a community to make sure they are safe. Its more than about painting lines on a road," he said.

As for (name removed), "from a rehabilitative standpoint, the family is very encouraged and hopeful and very proud of (name removed). He is trying very hard and has an amazing attitude and the school community is very supportive," he said.

(Name removed) has been back at school, and he is looking forward to starting and completing a full year in the fall, Emanuel said. He still has improvements to make and is working to overcome his disabilities.

"That's very encouraging. He's natively a very smart kid with a great attitude," Emanuel said.

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Like this comment
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.]

Like this comment
Posted by RMRN
a resident of Midtown
on Jul 18, 2013 at 10:07 pm

RMRN is a registered user.

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.

Like this comment
Posted by rick
a resident of Midtown
on Jul 18, 2013 at 11:23 pm

rick is a registered user.

Can you seriously injure someone through *careful* driving?

Like this comment
Posted by Alphonso
a resident of Los Altos Hills
on Jul 19, 2013 at 6:34 am

Alphonso is a registered user.

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!

Like this comment
Posted by Eva_PA
a resident of Ventura
on Jul 19, 2013 at 11:10 am

Eva_PA is a registered user.

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?

Like this comment
Posted by teresa_w
a resident of Mountain View
on Jul 19, 2013 at 11:16 am

teresa_w is a registered user.

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.

Like this comment
Posted by Minimizing Entrophy
a resident of Evergreen Park
on Jul 19, 2013 at 11:28 am

Minimizing Entrophy is a registered user.

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!!!!

Like this comment
Posted by Trainspotting
a resident of Charleston Gardens
on Jul 19, 2013 at 6:11 pm

Trainspotting is a registered user.

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.

Sorry, but further commenting on this topic has been closed.

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