DA: No charges to be filed against driver who swerved around stopped vehicle and killed bicyclist

CEDARBURG -- The Ozaukee County district attorney said no charges would be filed against a man police said was involved in the death of a bicyclist in Cedarburg in May.

Darlene Mingo passed away as a result of her injuries after she was struck by a vehicle around 6:30 a.m. on May 23 at the intersection of Pioneer Road and the Interurban Trail -- marked with a sign that says, "Trail Crossing" with an arrow pointing down, and another sign with a bicycle and pedestrian trail.

Police said Mingo was trying to cross Pioneer Road when a driver stopped to let her cross. A second driver swerved around from behind the stopped vehicle and struck Mingo.

In a memo to Cedarburg police from the Ozaukee County district attorney on Nov. 19, the DA wrote that following an analysis of the reports on this incident from law enforcement, an analysis of the striking driver's blood, and other investigative materials, "I'm forced to conclude that (the driver) caused the death of Darlene Mingo, but too many other factors prohibit pursuing criminal prosecution."

The letter from the DA said a witness to the crash indicated she saw Mingo waiting and started to slow down to allow her to cross the road, and as Mingo began riding in the marked crosswalk, the witness saw a vehicle to her right. She said the driver slammed on his brakes and hit Mingo.

The striking driver told investigators he had left a gas station and was driving his regular route when he saw the witness' vehicle "driving in a strange or odd fashion," slowing, but with no signal activated. He said he thought the woman was going to turn, so he moved into the other lane. He said he saw the bicyclist and tried to brake before the crash. The DA's letter said phone records showed he was not using his phone, and there had no alcohol or drugs in his system.

According to the letter, Wisconsin statute states that drivers must yield the right-of-way to pedestrians, bicyclists, or electric personal assistive mobility devices at a crosswalk where traffic isn't controlled by signals or a traffic officer in a manner which is consistent with the safe use of the crosswalk by pedestrians, and no pedestrian may suddenly leave a curb and enter the path of a vehicle so close that it is difficult for the operator to yield.

The DA wrote, "Ordinarily, I firmly believe that a person who violates (this statute) and kills someone should face charges, however, there are too many other factors that would work to defeat a criminal charge at trial."

The district attorney said in the letter the striking driver "obviously didn't see Mingo before she entered the road," and "it's obvious that Mingo didn't see (the striking driver's) vehicle approaching."

He noted that "a bicyclist's obligation is to wait until the road can be crossed safely," and "a driver has no obligation to yield for a bicycle waiting to cross -- only for a bicycle that is actually in the crosswalk." He said the witness in this case stopped because she didn't think there was anyone else on the road, "but she was wrong." The DA continued, "Arguably, slowing and stopping in that manner, when there was no bicycle in the roadway, was in violation of the traffic code."

While the district attorney said, "I do not believe that a conviction could be obtained in this case, and I am ethically constrained from charging crimes, I do believe the (striking driver) should be prosecuted for a variety of traffic violations, including inattentive driving, and passing a vehicle stopped for a pedestrian."