DUI or just accident? Drugs muddle issue

Laura Kell stands next to the memorial in April that she built for her daughter, who died after being hit by a van in front of Fortunato’s Italian Pizzeria in St. Pete Beach.

WILLIE J. ALLEN JR. | Times

Laura Kell stands next to the memorial in April that she built for her daughter, who died after being hit by a van in front of Fortunato’s Italian Pizzeria in St. Pete Beach.

ST. PETE BEACH — Laura Kell can't sleep. Her thoughts return to the family vacation four months ago.

April 10, Kell's daughter and her husband were walking along Blind Pass Road when a van jumped the curb and hit them. Her daughter died several days later, leaving three children.

Police suspected the driver, Aaron Rimar, might have been impaired. They waited on a toxicology report, which took about twice as long as the average DUI case. Then, because the prosecution of a DUI is trickier when it involves substances other than alcohol, the case was bumped back to the medical examiner for another analysis.

A few weeks after the crash, Kell wasn't angry.

"I have more than enough patience from God," Kell said. "I believe in justice. I believe it will be served."

Now, she's frustrated. Lying awake at night, she worries that Rimar is on the road.

• • •

It started just before lunchtime.

Seth and Heather Whalley were walking to the grocery store to buy food for a cookout on the beach. They were visiting Kell from their home in Charlotte, N.C.

As they walked along Blind Pass Road near 77th Avenue North, a brown Chevrolet van jumped the curb. About 50 feet later, it hit the Whalleys from behind, throwing them forward onto the concrete, police said.

At home, Kell could hear the sirens from the ambulance. She climbed onto the fourth floor of her building and looked through binoculars, thinking she'd be able to see the couple walking back. She waited two hours until the kids started complaining they were hungry. She piled them into the car.

Driving, she saw yellow police tape and stopped. She told the children to wait there. As she walked nearer to the scene, she saw her son-in-law's shoes. Then his baseball cap.

Her grandson ran up behind her.

"No, baby, no!" she called to him.

He saw the shoes, too.

"Those are my daddy's shoes," she recalled him saying.

• • •

Four months later, Aaron Rimar, 34, has not been charged with a crime. Jack Helinger, his St. Petersburg attorney, said nothing has suggested that the investigation isn't being handled properly.

"There's no doubt this is a just terrible tragedy. It breaks everybody's heart," Helinger said, adding Rimar has the "highest sympathy" for the Whalley family. "But there are accidents that are not crimes."

Helinger is right. If a driver is sober and operating the vehicle safely, the law says some fatal accidents are just that: accidents.

In 2003, for instance, a man plowed his car into a pack of about 20 cyclists on a residential street in St. Petersburg. Police investigated the driver for possible impairment, but charges were never filed because investigators didn't find evidence of a crime.

To see if Rimar was driving impaired, police took Rimar's blood at the hospital and sent the sample to the Pinellas County Medical Examiner, where forensics analysts tested it for alcohol and drugs. They also discovered that Rimar had 21 driving citations in Pinellas County for offenses including speeding, having an open alcoholic container and driving with a suspended license.

Two months passed. The toxicology report showed Rimar's blood contained no alcohol but four prescription drugs. Police passed the investigation to the State Attorney's Office, which sent Rimar's blood back to the medical examiner for further testing.

Reta Newman, director of the forensic laboratory in the Pinellas County Medical Examiner's Office, said DUI cases involving drugs other than alcohol are difficult to resolve.

With alcohol, the law pre-determines the level at which a driver is impaired. Other controlled substances require specific toxicology information and witnesses' statements to prove that the suspect was impaired.

Newman, who would not comment on the specifics of this case, said her office first checks to see if controlled substances were in a suspect's system. Then, if prosecutors believe the drugs impaired the driver, they conduct a second analysis to see how much of the substances are in the blood. The second test is expensive and isn't needed in every case, so the medical examiner only does it at prosecutors' request.

Other factors complicate the case as well. Prosecutors need evidence that Rimar's behavior was impaired. They also have to determine if he received medication from paramedics after the crash.

"It's kind of a grinding process that has to take place now," said Mark McGarry, felony supervisor in the State Attorney's Office, adding the two tests would have been streamlined if possible. No one likes to see cases dragging on, he said.

Meanwhile, Seth Whalley, Heather's husband, is recovering at home with the children in North Carolina. Laura Kell frequently visits an elaborate memorial to her daughter. It's built around a palm tree in front of Fortunato's Italian Pizzeria, where the crash happened.

She waits for a call from St. Pete Beach police telling her that Rimar has been arrested.

That call might never come.

Stephanie Garry can be reached at sgarry@sptimes.com or (727) 892-2374.

DUI or just accident? Drugs muddle issue 08/17/08 [Last modified: Friday, August 22, 2008 4:00pm]

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