DA declines criminal prosecution in case of man whose leg was severed in collision – UPDATED

DA declines criminal prosecution in case of man whose leg was severed in collision – UPDATED

Bike safety meeting and press conference-7.jpg

Alistair Corkett at a bike safety meeting
in City Hall three weeks after losing his leg in
a traffic collision.
(Photo © J. Maus/BikePortland)

The Multnomah County District Attorney’s office announced today that they will not pursue criminal charges in the case of Alistair Corkett, the man whose leg was severed in a traffic collision at SE 26th and Powell back in May.

In a seven-page memo, Senior Deputy District Attorney Glen Banfield explains that the man driving the 1988 Dodge Pickup that collided with Corkett might have been careless or even negligent, but his actions do not rise to the legal threshold necessary for a finding of criminal negligence.

According to the DA’s office and the Portland Police Bureau’s investigation, here are some facts in the case:

— On May 10th at around 9:52 am Corkett and his riding partner Anthony Disano were riding southbound on 26th. At the same time, Barry Allen was driving northbound. As they approached the intersection with Powell, Allen was in the left turn lane preparing to go westbound and Corkett and Disano were going to continue south on 26th.

“Although Mr. Allen may have been negligent or even careless in failing to yield the right of way to Mr. Corkett, his conduct under the present circumstances is not the type of conduct that rises to the level of criminal conduct. This tragic event is not chargeable as a felony assault. Accordingly this case is declined for criminal prosecution.”
— Glen Banfield, Senior Deputy District Attorney for Multnomah County

— Disano and Corkett told investigators they were riding at a speed of about 18-23 mph. The posted speed at the intersection is 25 mph. Speed was not considered a factor in this collision.

— As he approached the intersection with Powell, Disano said Corkett was just a bit behind him. With the light at Powell a steady green he saw a car turn left (westbound) onto Powell in front of him and proceeded into the intersection thinking it was safe. Then Disano saw Allen’s truck. “He said he saw into the cab as the driver hesitated, ‘like he was waiting for us,’” reads the DA’s memo. “Mr. Disano thought to himself ‘ok, we’re good’.” At that point Corkett was following right behind Disano.

— Seconds later Allen’s truck began to turn right in front of Disano, who then slammed on the brakes of his bicycle and veered to the left. Disano just missed hitting the rear passenger side of the Allen’s truck.

— Corkett told investigators he too believed Allen was going to wait for them to go through the intersection. There seems to have been a bit of miscommunication. The DA’s memo says that Allen began to turn left, right in front of Corkett, but then appeared (to Corkett’s perception) to have hesitated just a bit so he thought he could make it through the intersection.

— Corkett was unable to avoid Allen’s truck and collided with the rear passenger side bumper. He thought he had successfully avoided the truck, “But soon realized,” states the memo, “that he had lost his leg.” “… he looked up and saw his leg on the sidewalk,” states the memo.

— When PPB Traffic Division officer interviewed Allen he said he waited for a car in front of him to turn left and then waited for another car headed southbound to go by him. He says he did not see Disano or Corkett until he was already making his turn. They were “going faster than he realized”, he stated, and he tried to turn out of their path.

— The DA agrees with Allen and concluded that he was not aware of Corkett’s presence until he began his turn into the intersection.

— Allen was not under the influence of any intoxicants. He was remorseful at the scene, responded with aid for Corkett after the collision and cooperated with the investigation.

The investigation proves that Corkett was riding legally and had a green light. Therefore under Oregon law, Allen was required to yield the right-of-way. He didn’t do that, so there’s a possibility he’ll be given a traffic citation by the PPB.

When it comes to whether or not he deserves criminal prosecution, the DA would have to prove beyond a reasonable doubt that Allen’s failure to yield the right-of-way was reckless or done intentionally to cause physically injury to Corkett.

Here are the legal definitions the DA works with in this case:

​Under Oregon law a person acts intentionally or with intent when that person acts with a conscious objective to cause a particular result or to engage in specific conduct. A person acts knowingly or with knowledge, when a person acts with an awareness that the conduct of the person is of a particular nature or that a particular circumstance exists.

A person acts recklessly if that person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

Given the facts of the case, the DA feels they can’t prove Allen acted recklessly or intentionally. “When Mr. Allen began his turn into the intersection he believed he could safely proceed through the intersection,” DA Banfield wrote in conclusion. “As Mr. Allen proceeded through the intersection he saw Mr. Corkett and was unable to clear the intersection in time to avoid the collision.”

Whether or not Allen should have seen Corkett prior to the collision is the key point this all hinged on. If he could have been aware of Corkett, yet he still continued with the left turn, the DA might have had a case for reckless behavior. However, the DA relied on evidence gathered by a PPB officer who retraced Allen’s travel route a few weeks after the collision.

The PPB officer who retraced Allen’s route found that as he approached the intersection to make a left turn, “the north side of the intersection [where Corkett was coming from] appeared extremely busy and congested with activity… he observed pedestrians on the corners of the intersections waiting to cross as bicyclists, and vehicles entered and exited the intersection. The bicyclists he observed were ‘only visible for a short amount of time prior to entering the intersection southbound on SE. 26th Ave.’”

With that experience as part of their investigation, the DA was inclined to believe Allen’s claim that he wasn’t able to notice Corkett until it was too late.

Since the collision Corkett has raised over $90,000 to help with medical bills and physical therapy. In response to a community rally at the intersection The Oregon Department of Transportation installed a new left-turn signal.

​— Download the DA’s memo here (PDF).

UPDATE, 10:00 am on 10/1: Mayor Charlie Hales confirmed this morning on Twitter that the man driving truck will be issued three citations: careless driving, dangerous left turn, and driving uninsured. The careless citation will trigger the Vulnerable Roadway Users law (because it led to serious injury) and therefore Mr. Allen will face a steeper fine (up to $12,500), community service, and so on.

And we just saw that the PPB has issued a statement confirming this news. The PPB says the citations were dismissed initially due to an “administrative error.”

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