CONFIDENTIAL - FOR POLICE AGENCY USE ONLY
DECLINE
Suspect(s): R NCD M GNCD , AKA R NCD M GNCD
Crime: Vehicular Homicide
Case No: 2014-288179
Investigator: Officer Andrew R Norton
Agency: Seattle Police Department Unit: TCIS
We are declining to file this case in Superior Court for the following reasons:
☒ A. Case is being returned for filing in municipal or city court.
☐ B. Case is being sent to our District Court Unit for review.
☐ C. Case is being declined for non-evidentiary reasons.
☐ D. Case is being returned because it is legally insufficient.
☐ E. Case has been used as part of a plea package. (Cause# CAUSE NUMBER???)
☐ F. Case is being declined at this time because we have not received the materials
requested on REQUEST DATE???. If you resubmit the case with the requested
materials, please be sure to include copies of any CDs, DVDs or thumb drives.
☐ Please submit the sexual assault kit to the WSPCL for analysis.
☐ DO NOT DESTROY EVIDENCE, filing on co-defendant(s).
Facts:

On Friday, 8/29/2014, a bicyclist was riding to work on 2nd Ave in downtown Seattle.
She was using the left dedicated bike lane. The lane had been extensively re-painted
in anticipation of a complete remodel that was to create a separate and independent
bike path. She was traveling with the flow of traffic.
A box truck turned left onto 2nd Ave at Seneca St, approximately 8-10 car lengths
ahead of the bicyclist. The truck was driving with the flow of traffic in the lane next
to the bike lane. It is apparent that the driver, was using his mobile phone while
driving. He was receiving calls and sending a text using a voice texting service. His
last message was sent ~ 20 seconds prior to his slowing to turn left onto University
St.
He slows and has his left signal operating, but turns obviously oblivious to any
cyclist in the bike lane. By this time, the cyclist has not merely caught up to him, but
has begun to overtake him. Although he has three side mirrors to severely limit any
“blind spot,” he has failed to notice the cyclist. He states he has driven this truck for
7-8yrs so ought to be aware of the blind spots.
The cyclist has the right of way to continue straight on 2nd Ave.
Tragically, the cyclist either does not realize the truck is turning or assumes it will
wait for her to pass. She T-bones at the front driver’s wheel and is thrown to the
ground and instantly killed when the wheels drive over her head.
The truck stops immediately. According to the passenger of the truck, the driver

 Discussion:

checks on the cyclist then returns to the truck and tosses the cellphone on the
floorboard.
Based on all credible statements, the phone is in his hand at the time of the crash
and he may have been waiting for a reply to his text message. However, the cell
records reflect that he is not actively engaged in a call at the time of the collision. His
passenger only remembered the next day that when he returned to the truck and
tossed the phone inside that he asked the passenger to not tell police he was on the
phone at the time. The passenger said he forgot the remark when initially talking to
the police since he didn’t think he was on the phone.
Although 2nd avenue has been modified since the time of this collision, the bike
lane in place at the time of the collision was the more customary – a white line and
some road markings. There were no separate lights controlling the intersections,
or separate, green bikeway lines, as it is now that it has been re-done.
There were no other cyclists immediately ahead or behind the truck that morning.
Vehicular homicide charges can only be filed when there is sufficient credible
evidence to support (a) impairment from drugs or alcohol, (b) driving in a reckless
manner, or (c) driving with disregard for the safety of others (DSO). RCW 46.61.520.
In the present case, there is no evidence of impairment, and therefore, the possible
vehicular homicide charge would be based upon driving in a reckless manner or
DSO.
The reckless manner-prong requires proof that the defendant was driving "in
a rash or heedless manner, indifferent to the consequences." Reckless manner is the
same kind of knowingly dangerous driving that is seen when drivers are purposely
weaving and/or speeding away from police or racing with other drivers or
purposefully ignoring traffic signals and signs while engaging in other dangerous
driving behavior. The present case presents no evidence that GNCD intentionally
turned in front of the cyclist, trying to finish the turn and force her to yield or was
actively texting at the time and not paying attention to circumstances of the turn.
Under these circumstances, the evidence is insufficient to support the reckless
manner prong.
With respect to the “disregard for the safety of others (DSO)-prong, the
Washington Supreme Court determined that driving with disregard for the safety of
others means driving with "an aggravated kind of negligence or carelessness, falling
short of recklessness but constituting a more serious dereliction than the hundreds of
minor oversights and inadvertences encompassed within the term ‘negligence.’"
State v. Eike, 72 Wn.2d 760 (1967). Accordingly, to prove DSO, the State must
show negligence plus some level of conscious disregard of a dangerous or a
potentially dangerous situation.
Ordinary negligence is the failure to exercise ordinary care. It is the doing of
some act which a reasonably careful person would not do under the same or similar
circumstances of the failure to do something which a reasonably careful person
would have done under the same or similar circumstances.
The fact that a driver is negligent and causes the death of another is not
sufficient to establish vehicular homicide. See State v. Gostol, 92 Wn. App. 832
(1998); State v. Thompson, 90 Wn. App. 41 (1998); State v. Rogers, 70 Wn. App.
626 (1993). ”Every violation of a positive statute, from a defective taillight to an

 inaudible horn may constitute negligence under the motor vehicle statutes, yet be
unintentional, committed without knowledge, and amount to no more than oversight
or inadvertence. . . To drive with disregard for the safety of others, consequently, is a
greater and more marked dereliction than ordinary negligence.” State v. Eike, 72
Wn.2d 760 (1967).
In State v. Lopez, 93 Wn. App. 619 (1999), vehicular
homicide (dso) was not supported when an unlicensed minor driver rolled her vehicle
and killed a passenger. There was no evidence that the crash occurred because Lopez
consciously disregarded a danger. The Lopez Court held that “[s]ome evidence of
the defendant’s conscious disregard of that danger is necessary to support vehicular
homicide.” See also State v. Vreen, 99 Wn. App. 662 (2000), aff’d 143 Wn.2d 923
(2001)(“There is a mental element to ‘carelessness’ or ‘conscious disregard.’”).
In this case, the driver was using a cell phone near in time to the collision. In fact,
he may have been awaiting some further message/call when the collision occurred.
The conduct poses the question about whether this is a safe practice, or more
specifically, a legal practice. Despite what we know about the use of phones and
the distraction they present to a person driving a vehicle, Washington State law is
almost silent about this danger. The only issue that has been addressed, in the
form of an infraction, is the use of a phone, by a driver, when held to the ear (or
texting). This leaves open the use of phones while having the phone in your
hands, but not pressed to the ear (e.g. using the speakerphone mode is not an
infraction). Issues related to the use of other common smart phone features that do
not involve holding the phone to your ear or actively texting are entirely
unaddressed.
While driving in a distracted state is negligence, and perhaps DSO in some more
aggravated cases, we cannot say that the use of a phone near in time to a collision
qualifies, in and of itself and without more. Although it seems dangerous and
research is converging to show it is likely to be distracting, the law in WA
continues to treat it no differently than many other forms of distraction. There are
many things that drivers might do that might result in a collision, but do not
constitute DSO, in and of themselves. They can be precursors to collisions, but
represent ordinary negligence in most cases.
Without some clearer directive from the legislature about the use of phones while
driving – we cannot say that the behavior in this case, in which a person was using
a phone near in time to a collision, but not during the collision event and merely
has the phone in his hand at the time of the collision, represents “conscious
disregard” for the safety of others. As the law is written, this appears to be
ordinary negligence under these circumstances.
There is evidence that GNCD failed to yield, but it does not rise to the level that meets
the definition for a felony criminal act. I recommend appropriate infractions with
Seattle Muni Ct.

 Deputy: Amy J. Freedheim

Date: 08/04/2015

Telephone Number: (206) 477-1921
Supervisor: Brian McDonald

Date:

Detective contacted: Yes ☒ Left message ☐ No ☐
Criminal Division, King County Prosecuting Attorney's Office, (206) 296-9000