While I've viewed many of the posts here on this topic, I thought this case in Florida during the same month was also similar. I apologize if this was already posted. Tragic that the bicyclist struck was a 15 year old.
December 16, 2011 12:55 AM
Posted in: Flagler Tagged:Gary E. Wright ,Kirt Smith PALM COAST -- The driver of a pickup who struck and killed a 15-year-old on a bicycle in Seminole Woods in August had a blood-alcohol level nearly twice the legal limit but won't be charged with DUI manslaughter, according to the Florida Highway Patrol.
Gary E. Wright Jr., 32, of Palm Coast has been charged with misdemeanor DUI because authorities didn't think he was at fault for the fatal accident.
Wright was driving the pickup which struck Kirt Smith from behind as Smith peddled south about 8:40 p.m. on Aug. 26 in the inside southbound lane on Seminole Woods Boulevard south of State Road 100 in Palm Coast. Kirt died from his injuries three days later at Halifax Health Medical Center in Daytona Beach.
Wright admitted to drinking two Long Island Iced Teas and had a blood alcohol level of 0.15, according to the FHP report. A driver is considered impaired under Florida law with a blood alcohol level of 0.08.
However, Kirt was riding his bicycle in the dark without a headlight, taillight or rear facing red reflector, according to an FHP accident report. A headlight, taillight and the rear red reflector on the bicycle are all required by law, said FHP Lt. Bill Leeper in a phone interview. Smith also was required to wear a helmet because he was under 16, Leeper said.
"Our investigation has been completed and after collecting all of the evidence, interviewing witnesses and consulting with the State Attorney's Office, we have charged Mr. Wright with Driving Under the Influence (DUI)," Leeper wrote in an e-mail.
Assistant State Attorney Ben Fox said Thursday that a DUI manslaughter charge combines driving under the influence with causing or contributing to the cause of a fatal crash.
"If it's the other person's fault but the (DUI) defendant didn't cause the crash, then it's just DUI," Fox said.
FHP Cpl. Peter Young, who investigated the accident, conferred with Fox.
"He did consult us and we did agree that there was insufficient evidence of causation to file DUI manslaughter, and the trooper determined and the State Attorneys Office agreed that he would file just the DUI citation," Fox said.
It's difficult to determine whether alcohol prevented a driver from taking evasive action to avoid a crash, Fox said.
"You have to be able to show that had the person not been impaired he could have avoided the crash and I don't believe that could be proven in this case," Fox said.
If convicted of misdemeanor driving under the influence, Wright faces up to six months in jail, although there is no mandatory jail time. Wright also faces suspension of his drivers license for between six to 12 months, and between six months and one year probation. He may have to perform 50 hours of community service and have his vehicle impounded for 10 days, and pay a $500 fine.
The decision to charge Wright with what is known as a "simple DUI" means he does not need to worry about the much stiffer penalties of DUI manslaughter -- a second-degree felony carrying a minimum of four years in prison and a maximum of up to 15 years upon conviction. The DUI manslaughter charge also carries a fine of up to $10,000 and a lifetime drivers license revocation.
Kirt Smith's father, Brent Smith of Palm Coast, said Thursday he is struggling with the pain of losing his only son. Smith said his long hours at work as plant manager of Contemporary Machinery & Engineering Services helps take his mind off the anguish.
"I actually don't know how I feel on the findings in the blood alcohol level," said Brent Smith. "Any one individual can go to a bar and have a drink and if they leave immediately they are over the limit."
Smith added he is also having trouble with the FHP blaming his son.
He said Kirt and his friend were riding correctly along the right side of the right lane of Seminole Woods Boulevard and had moved to the left lane to make a left turn as they were supposed to do.
"He and Drew were riding down the right hand side of Seminole Woods right on the edge of the road, just like you are supposed to do," he said
Smith said the bicycle's pedals did have reflectors. He said the FHP told him that Kirt Smith was wearing soft shoes which probably bent and covered the pedal reflectors. Brent Smith said he doesn't know why the bright red bicycle which was only a week old wouldn't have had its rear red reflector.
"The last time I saw the bike it had a rear reflector," Smith said. "I don't know if he had taken it off to put the lights on it."
Brent Smith said he brought his son home from the hospital when he was 2 days old and had given him lots of things in life.
Kirt Smith had traveled a lot, had owned a motorcycle when he was just 6. He liked to ice skate and was a tough athletic kid.
Brent Smith said his son had asked him earlier that Friday the night of the accident if he could stay at his friend Drew's house. But Brent Smith had told his son to come home to help him work the next day on a '55 Chevy, which had become a father and son project. He said Kirt Smith enjoyed working on the car.
Kirt Smith told his father he would head home after dropping his friend off. But somewhere along the way the two boys got a call from a couple of girls in the Seminole Woods section. They headed toward the house of one of the girls. Kirt Smith had a bottle of cologne in his pocket.
"He knew he was supposed to be home at 9 o'clcok," Brent Smith said. "He's 15-years-old and a couple of girls called. What would you do at 15?"
Smith said he bought a headlight and a taillight for his son's bicycle, which his son purchased about about a week before the accident with money he'd made at a summer job.
"The day he bought the bike I bought him taillights and headlights to go on it," Brent Smith said.
"They are still sitting in his room, in the box."