More than four months after a 22-year-old cyclist lost his leg to an uninsured pickup driver's inattention, the Multnomah County District Attorney's Office has decided that driver won't face criminal charges.
After repeated inquiries over months, the DA's office finally released to the Mercury this afternoon a memo [pdf] indicating it won't criminally charge 42-year-old Barry Scott Allen in the crash that severed cyclist Alistair Corkett's right leg on May 10.
The reason: Even though Allen caused the grisly collision by failing to yield to Corkett before he turned left onto SE Powell from 26th, prosecutors don't think they can prove he knew he'd cause an accident.
"The state cannot prove beyond a reasonable doubt that Mr. Allen recklessly caused serious physical injury to Mr. Corkett," Deputy District Attorney Glen Banfield wrote in the memo. "In order to find Mr. Allen guilty of recklessly causing serious physical injury to Mr. Corkett; the state will have to prove that Mr. Allen was aware of and consciously disregarded a substantial and unjustifiable risk of causing such injury to Mr. Corkett by proceeding through the intersection."
Basically, the argument is that Allen didn't see Corkett coming toward him, with a friend, in broad daylight, before he began turning left. From the memo:
There are no facts that support the inference that Mr. Allen purposefully drove his car into the intersection with the conscious objective to injure Mr. Corkett; or that he proceeded through the intersection with awareness that driving into the intersection would cause physical injury to Mr. Corkett. To the contrary, the evidence suggests that Mr. Allen believed he could safely travel through the intersection.
Banfield put it a little more simply in an interview: "We have to prove that he was not only aware of the risk of causing injury, but that he in his mind basically said 'screw it.'"
The charging decision would have changed if Allen was intoxicated—and in fact a urine test showed signs of pot—but cops found no indication the man was under the influence when he caused the crash. Pot can stay in urine for weeks.
Banfield has said repeatedly over past months—including in a conversation on Monday—that he was still examining evidence in the crash. But the memo Banfield gave the Mercury suggests he's known for some time Allen wouldn't be charged. The first copy we received was dated June 29.
So is Allen going to face any consequences? Almost certainly. In fact, court records show Portland police already filed a trio of moving violations against Allen, before dismissing them.
An August 23 traffic citation written by PPB traffic Officer David Enz accuses Allen of careless driving, making a dangerous left turn, and driving uninsured. Since the crash involved serious injury, those violations could mean community service, a driver's license suspension, and more than $12,000 in fines.
According to online court records, the ticket was filed with the Multnomah County Circuit Court on September 14, with a requirement Allen be in court on the 23rd. But on the 23rd, records show the ticket was dismissed.
Banfield said Monday he was unaware of the filing and subsequent dismissal, and that he'd have to check with Enz, the traffic officer. Enz told the Mercury he couldn't comment because the case is "ongoing," and referred us to Sgt. Pete Simpson, the police bureau's chief spokesman.
"My understanding is that the citations were dismissed pending the outcome of the criminal review by the District Attorney's Office," Simpson wrote in an email. "Since the case remains open, that's all we really can say right now."
The traffic citations haven't yet been refiled, according to court records. "They will be filed against him, and they should be filed," Banfield, an avid cyclist, tells the Mercury.
The May 10 crash was significant not only for it's grim outcome (Corkett, by the way, has maintained a admirably sunny outlook on the whole thing). It was the first of a series of May car-bike crashes—one of them fatal—that focused attention on the Oregon Department of Transportation's stewardship of SE Powell Boulevard.
The May 10 crash rallied activists to pressure ODOT for safer conditions. The agency agreed to fast-track better traffic lights at the intersection of 26th and Powell, but then changed course and began pushing for the 26th Avenue bike lane to be removed.