Survived a car/bike collision? SDPD says you were party to a simple traffic violation

Lieutenant of Traffic Division, Rick O'Hanlon

In light of Charles Gilbreth’s and David Ortiz’s deaths, I decided to follow up on a small handful of the car/bike collisions that I’ve written about here.

I contacted Lt. O’Hanlon for an update on the following five cases. Specifically I wanted know if criminal charges had been filed against the drivers that were responsible for the death or injury of the following individuals:
1. Justin Newman – Newman died from his injuries after being doored on University Avenue
2. Unknown name – A little 10 year old girl was severely injured when she was hit by a driver in a van as she was riding her bicycle. The little girl was riding with her father when she was struck by the van turning left into her right of way.
3. Grant Fisher – Fisher was injured when he was struck by from behind while riding his bicycle during a lunch time break. The 76 year old driver who hit Fisher claims she swerved into the bike lane where Fisher was riding to avoid getting hit by a truck coming up behind her.
4. David Ortiz – Ortiz was struck and killed when riding his bicycle to work on Balboa Avenue. The first (of three) drivers that struck Ortiz reported that she was blinded by the sun’s glare and thus didn’t see Ortiz when the collision occurred.
5. Charles Gilbreth – Gilbreth was hit from behind when riding home from work by an apparently impatient driver in an SUV.

O’Hanlon reported that the investigation on the Newman case has been completed and the results sent to City Attorney’s Office for misdemeanor and manslaughter charges. O’Hanlon did not know if the City Attorney had filed charges. I too have been unable to determine whether charges have been filed in the Newman case.

No charges have been filed against the driver who struck the little ten year old girl who was injured while riding with her father. No charges were filed because the little girl survived.

Since Fisher survived, no charges have been filed. The SDPD has asked the DMV to reexamine the driver’s license. Fisher, in the meantime, has filed a civil suit against the driver that is currently ongoing.

O’Hanlon reported that the Ortiz investigation was almost done. O’Hanlon stated that it would “in all likelihood will go to the City Attorney’s office”.

When asked for specific details on the Gilbreth case and details about the collision. O’Hanlon stated that speed, alcohol, road rage nor the sun’s glare (as was the reason stated in the Ortiz case) were not factors in the Gilbreth crash. He said that investigation was still ongoing as results from the medical examiner and the toxicologist could take anywhere from 6-8 weeks to wrap up. There were no witnesses in this crash as the MTS driver didn’t witness the crash.

I wasn’t familiar with the process on what happens when the SDPD hands a case over to the City Attorney’s office and O’Hanlon stated, “once the case has been submitted to the City Attorney, the City Attorney will evaluate the case based on the evidence and, based on the investigation they’re the ultimate decision makers” on what, if any, charges will be filed. “The police department has no say in that. [The City Attorney’s Office] have complete judicial discretion in that. They can’t tell us how to conduct our investigation and we can’t tell them whether or not to file charges.”

O’Hanlon went on to state, “it is not the police department’s decision to file charges. Even if we make a custodial arrest (i.e. arresting someone), the City Attorney has within their latitude to dismiss the charges.”

I was shocked when I heard O’Hanlon state that no charges were filed against the drivers responsible for two cases where the bicyclists survived.

O’Hanlon responded, “to be charged with a crime, there has to be a death.” Thus, the only recourse for the party injured is to pursue the case in Civil Court for damages. In order for a case to go to the District Attorney’s office the case has to be a felony – and the criteria for a felony includes intent, malice, gross negligence or substance abuse. But in a case that is not a manslaughter, “the law is very restrictive. We don’t have a misdemeanor.” Intentional road rage acts have “malice and premeditation and you have assault with a deadly weapon.”  Absent that, “you have a vehicle code violation”.

Thus at best, the most the drivers would be charged with if they didn’t willfully injure a bicycle rider was a traffic infraction, or a California Vehicle Code violation.

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