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Frank Gray

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Law restricts making case in fatal bike crash

Smith

The weather was clear and bright, the sun almost directly overhead a few minutes after noon, and the stretch of Old Indiana 3 about a mile north of LaOtto in Noble County where Talia Joy Smith was riding her bicycle on Aug. 18, 2010, was straight and flat.

Then, from behind, a car approached and hit Smith. She smashed against the right side of the windshield and was thrown into the air. The straps on the helmet Smith was wearing were broken in the impact.

The helmet landed on the other side of the road, and Smith, 20, a vocal performance major at New York University who dreamed of some day performing on Broadway, landed in the center of the northbound lane where she had been riding.

She was dead.

Different witnesses have given different descriptions of what happened that day.

The driver of the car said Smith swerved into his path to avoid a limb in the road and that he couldn’t avoid hitting her.

One witness, though, interviewed by an accident reconstruction expert hired by Smith’s family, said that Smith was riding in approximately the center of the northbound lane but that they saw no limb in the road and Smith didn’t swerve.

Another witness, interviewed by the same expert, said that not only was there no limb in the road, but that Smith was riding within a foot of the edge of the road, that she never swerved, and that the car that hit Smith didn’t slow down or make any effort to avoid the girl on the bicycle. This witness added it was as if the driver didn’t even notice Smith, who was wearing black bicycle shorts and a white top.

After the accident, blood and urine samples were taken from the driver. The tests showed he had no alcohol in his system. He told police that he had taken a prescription painkiller, and one test showed the drug was in his system. But the police officer in charge of the investigation said the driver showed no signs of impairment, no slurred speech, no lack of coordination or confusion.

It’s been about 2 1/2 years since the accident, and no charges have been filed in connection with the death of Talia Smith.

Brad Smith, Talia’s father, has hired independent experts and lawyers to investigate the crash and passed on the findings to authorities in Noble County, pressing police and the county prosecutor’s office to revisit the case in hopes that charges will be filed.

But nothing has changed.

Brad Smith is angry that the blood sample taken from the driver of the car was discarded by the hospital before being tested. He says the law needs to be changed to make sure that blood tests for drugs are performed in all fatal crashes.

Two-and-a-half years down the line, though, Brad Smith feels as if it is OK to run down bicyclists.

I talked to Doug Harp, the Noble County sheriff’s deputy who investigated the accident who is now the Noble County sheriff.

Harp remembers the day vividly. At first, no one was sure whether the cyclist was a boy or a girl, and she had no identification. So Harp took Talia Smith’s cellphone and called “Dad.” He reached Brad Smith. It turned out Harp knew both Brad and Talia Smith.

It was the worst day in his career in law enforcement, Harp said.

But what of the impression that it’s OK to run over cyclists, I asked?

“The case is not closed,” Harp said. “It’s still open. The prosecutor is still aware of all the information. We revisit it.”

If there was a way to charge the driver, he’d do it, Harp said, but the case is at a standstill.

“It seems so simple, but in the eyes of the law, we’re restricted as to what we can do,” Harp said. “We’ve looked through everything and there’s nothing to charge him with,” in connection with the crash.

In a written summation of the accident investigation, the sheriff’s department noted that the driver had no alcohol in his system, so he couldn’t be charged with driving while intoxicated.

Harp said the driver may have had a prescription painkiller in his system, but that in itself is not illegal. He displayed no impairment or confusion, so if the case went to court, Harp said, he couldn’t testify that the driver seemed impaired.

The possibility of charging the driver with criminal recklessness or reckless homicide wasn’t possible because there was no evidence the driver was driving recklessly.

“On the law enforcement side, we’re looking for things where we can charge and win,” Harp said.

Based on what some witnesses said, was the driver inattentive?

“There’s no law for inattentive driving,” Harp said. “There’s no way to measure it.”

The ugly reality is that in the case of Talia Joy Smith, “It was just an accident,” Harp said. “It wasn’t intentional.”

Frank Gray reflects on his and others’ experiences in columns published Sunday, Tuesday and Thursday. He can be reached by phone at 461-8376, by fax at 461-8893, or by email at fgray@jg.net. You can also follow him on Twitter @FrankGrayJG.

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