Driver in fatal Father’s Day crash won’t face charges

The Bainbridge teen who was behind the wheel in a deadly car crash on Finch Road last Father’s Day that left one man dead and another paralyzed will not face criminal charges.

Kitsap County Prosecuting Attorney Chad M. Enright, in a May 16 decision, said officials had reviewed possible charges of vehicular homicide, vehicular assault and driving in a reckless manner.

But criminal charges would not be pursued, Enright said in the 14-page memo, because “we reached a conclusion that the facts and the law don’t result in a case that we can reasonably conclude would be proven beyond a reasonable doubt.”

Enright said the driver, an 18-year-old Bainbridge resident, fell asleep while driving and would be cited for second-degree negligent driving.

Investigative records show the driver was not impaired at the time of the crash, according to police at the scene, and blood test results found no drugs or alcohol in his system. (The Bainbridge Review is not identifying the driver because he has not been arrested or charged with a felony crime.)

It was a tough decision for the Prosector’s Office: Enright, in his decision memo, said: “We can’t help but feel a sense of failure with this case.”

“The hardest decision to make can be the decision to not file charges. But that is what the law sometimes requires,” Enright said, and noted that prosecutors must “remain committed to the law above all else.”

Father’s Day tragedy

The crash happened just before 9:30 a.m. Sunday, June 17 as the 18-year-old was driving a 2006 Honda CRV north on Finch Road just south of the Sportsman Club Road intersection.

The teen told police that he had been up all night at the senior cruise after graduating from high school the previous day and had just got back at 6 a.m. He said he was driving to meet his parents at a nearby church — the teenager was going to watch his sister’s flute performance — when he “drifted off” and went off the road, hitting two runners who were jogging north on the shoulder of Finch Road.

A witness in a car behind the Honda said he saw the Honda pull over onto the shoulder like the driver was going to stop behind the runners, but the driver didn’t stop and collided with the two men.

One of the runners, Christopher Fendrich, was thrown over the car and landed behind the Honda in the middle of the road, while the other runner, Troy Scott, was thrown into the ditch.

Both men had serious head injuries. Police arrived to find the driver in the ditch, trying to revive Scott with CPR.

The driver helped the police officer carry Scott onto the pavement and the officer took over resuscitation attempts. Emergency responders from the Bainbridge Island Fire Department quickly arrived and took over life-saving efforts.

Both Fendrich and Scott were airlifted by helicopter to Harborview Medical Center in Seattle, where Fendrich later died.

A witness who drove past the runners just before the tragedy said both men were completely off the road and on the shoulder of Finch Road.

Police questioned the driver at the scene of the crash, and he said he was going to meet his parents and church and “drifted off for a second and then hit them,” according to an investigation report written by Bainbridge police.

The driver was given a breath test at the crash site and the reading was 0.000. He consented to have two vials of blood drawn, and Bainbridge police called in collision experts with the Kitsap County Sheriff’s Office to conduct an investigation.

Blood test results came back from the Washington State Patrol in November and the toxicology reports showed no trace of drugs or alcohol in the driver.

Prosecutor’s review

The long delay in concluding the case was partly due to delays in testing the driver’s blood by the WSPR crime lab, the county’s prosecuting attorney said in his decision memo, which was released to the Review last week following a public records request.

Enright said the case was initially reviewed by himself and former county prosecutor Tina Robinson, and was further reviewed by four other deputy prosecutors and officials in the Kitsap County Prosecutor’s Office. Kitsap officials also sought a review of the investigation by King County professionals, and met with members of the families of both Scott and Fendrich and their friends as they considered several different possible criminal charges.

Enright said the driver’s car was fully off the roadway when the collision occurred, and evidence also showed the Honda was going 6 mph to 13 mph over the posted speed limit of 30 mph.

Enright added, however, that the crash involved “both voluntary and involuntary actions” by the driver. That distinction would prove crucial in his decision to not seek criminal charges, he said.

“The law does not generally punish actions that are involuntary. Actions done while someone is asleep are involuntary,” Enright wrote in his decision memo. “Here, the act of speeding and the act of drifting off the roadway are consistent with [the driver] falling asleep.”

Enright said that if the driver “were awake, aware that he was speeding, and aware that driving off the roadway put lives at risk, he would likely be criminally liable.”

Authorities needed evidence to show that the driver “should have known” he was too tired to drive, but Enright said that was evidence the prosecutor’s office did not have.

“Criminal charges would require that we establish not that [the driver] was too tired to drive, but that he also knew he was too tired to drive. Our best evidence is that the school warned students not to drive home and required that someone pick students up.”

While that school warning and requirement could be viewed as circumstantial evidence that the driver should have known he was too tired to drive, Enright recalled a 2015 court case where a prosecutor was found to have committed misconduct by arguing that the defendant “should have known”; that argument was ruled unconstitutional and the conviction was reversed.

“We have no statements from witnesses describing [the driver’s] behavior and who saw that he was tired. We have no witnesses who heard him claim he was tired. We have no evidence that [the driver] fell asleep at any point while driving to the point of the collision.”

The prosector’s office said it could not find any opinions from the Washington State Supreme Court or the Washington State Court of Appeals on vehicle homicide/assault by a driver who had fallen asleep or was drowsy.

Enright noted that a 2016 case in Whatcom County — where a man was charged with two counts of vehicle homicide after he fell asleep while driving and hit and killed two high school students — resulted in a “not guilty” decision even though the driver told a coworker he was tired before the collision and admitted that he napped in his car after work about three times a week.

Enright also recalled the case of a New York bus driver who fell asleep and crashed, killing 15 passengers. He was also found “not guilty.”

The prosecutor said that only two states — New Jersey and Arkansas — have criminalized drowsy driving, and a similar law proposed in Washington state failed in the Legislature in 2018.

The law in New Jersey and Arkansas also requires the state to prove the defendant was awake for 24 hours before driving, and Enright noted that Kitsap investigators did not know what the Bainbridge driver did after he returned in the early morning after his graduation celebration, and didn’t have evidence that the driver didn’t take a nap when he got home.

Evidence of the driver’s possible fatigue was not available to prosecutors as the driver did not make any additional statements to investigators in the weeks following the crash, and exercised his right to remain silent.

His attorney also told prosecutors that the evidence and law supported a decision not to pursue criminal charges, and noted that the driver was “a 4.0 student who did everything we hoped a high school student would do (sports, activities, honors, music, etc.)” and added that he had never drank alcohol or used marijuana.

Lack of evidence

Family members of the victims repeatedly encouraged prosecutors to charge the driver with a crime, and one family member noted that an investigating officer had concluded that the driver should be charged with vehicular homicide.

Enright said the sheriff’s deputy who came to that conclusion — as well as attorneys who first reviewed the case — did not properly consider the complexity of meeting the standard of negligence.

There wasn’t evidence that the driver was willfully speeding, Enright said, or decided to drive off the road. Nor was there evidence that he thought he was too tired to drive.

While the driver received a generalized warning from the cruise company that hosted the senior celebration, investigators found no witnesses who would testify that the teen did not appear too tired to drive. Authorities also lacked details on what the driver did after he was picked up from the dock and later left his house.

“We have no witnesses to contradict that testimony,” Enright said in his memo.

“We have to concede that people drive fatigued,” Enright added. “Shift workers, parents with sick children, or anyone with deadlines to meet has probably driven fatigued. The issue is whether [the driver] was aware that he crossed the line between general fatigue, and extreme fatigue that put the lives of the public at risk. We cannot infer that knowledge from the little evidence we have.”

Solid process

That said, Enright also noted that a King County deputy prosecutor who reviewed the case praised the “thorough investigation” of the crash conducted by the Kitsap County Sheriff’s Office.

Enright, in his decision memo, also defended the decision to not pursue criminal charges, but admitted his office was not happy with the result.

“When tragedies occur, the community understandably demands accountability. Typically, the decision to file charges is made behind closed doors, with little information provided to the victims or public,” Enright wrote.

“This case has been different. Instead, we have sought input from the victim, family and friends. We have shared the legal and factual difficulties. We have sought their input, and re-evaluated each decision we have made. We have provided them a copy of the law enforcement investigation and attempted to make our decision-making transparent,” he said.

“The law enforcement officers and prosecutors who have reviewed this case have put in an extraordinary amount of work. While some may disagree with our conclusions, that should not diminish the fact that this case has been rigorously reviewed in a manner that I wish we had the resources to review every case with,” he added.

Enright said justice demands a fair and thorough process, and noted officials must accept the conclusions “despite their own disappointment at the end result.”

“Every prosecutor in my office who reviewed this case, including myself, immediately concluded that this must be a crime,” Enright added. “It can be personally disappointing when you’ve invested in a result, but later find that the facts and the law take you to a different destination. If all the expectations, personal investments, and pressure, push prosecutors toward violating legal principals in order to justify their work, or satisfy demand for accountability, that is a miscarriage.”

He also noted that prosectors “don’t always get it right,” and noted that the decisions are made by people “with the same flaws and frailties of anyone else.”

“We treat this case like we should treat all cases, with a commitment to deliberation and against predetermined outcomes. We take the evidence gathered and the laws that have been passed. We challenge our understandings and conclusions. We ask others to challenge our views.

“Not all misdeeds are crimes. Not all tragedies are criminal,” he added.

“In cases like this, it has been suggested that perhaps the best course of action is for a prosecutor to bring charges and allow the community, through a jury, to decide on the criminality of the conduct. It has also been suggested that the fear of a prison sentence may compel [the driver] to plead guilty to a lesser criminal offense and provide some level of accountability,” Enright said.

“It has been argued that acquiring a criminal conviction by these means would be an appropriate use of the power of the state, as the end result would be criminal conviction that would stand as an acknowledgment that [the driver} is responsible for the harm he caused. I don’t believe that the constitution, the Rules of Professional Conduct, or our own moral compass can point us in that direction. It’s not enough for a defendant to eventually receive a fair trial by an impartial jury. The decision to file charges in the first place must be just, supported by the facts and supported by the law.”

Enright noted he had met with the families of the victims, and that they were disappointed by the decision.

“I know that they are disappointed by this decision,” the prosecutor wrote.

“That a criminal charge is not deemed appropriate, or evidence is insufficient, does not mean that we are approving of the conduct. It does not mean that we believe the conduct is justified, or that we believe no wrong has occurred,” he added. “It means that we reached a conclusion that the facts and the law don’t result in a case that we can reasonably conclude would be proven beyond a reasonable doubt.”

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