Wednesday, December 11th, 2013
Coldwater, police officer sued for fatal crash
Officer did not retain driver he stopped minutes before accident
By Kathy Thompson
The village of Coldwater and one of its police officers are being sued for more than $25,000 by a survivor and relatives of a man who died in a fiery crash in July 2012.
The lawsuit was filed in Mercer County Common Pleas Court by attorney Jose Lopez, who represents accident survivor Bethany Marie Wentworth, 22, of Greenville, and the family of Craig A. Gengler, 22, of Celina, who died.
The driver of the crash, Ryan Billenstein, 28, of Coldwater, is serving 13 years in prison for several charges including driving under the influence at the time of the crash in rural St. Henry on July 14, 2012.
The wrongful death case claims that police officer David Powell failed to perform his duties when he stopped Billenstein in Coldwater shortly before the crash and did not retain him. Powell witnessed Billenstein driving erratically and noticed an odor of alcohol inside the vehicle during the traffic stop but did not retain him, the lawsuit claims. The fatal crash at 2:58 a.m. occurred about 15 minutes after Powell sent Billenstein on his way, law enforcement reports state.
Wentworth and Gengler were passengers in the vehicle driven by Billenstein along state Route 119 when it traveled off the south side of the road near Lange/Fleetfoot road. The vehicle spun out of control and struck two trees before it burst into flames. Wentworth was able to escape; Gengler was pulled from the vehicle but rescuers were not able to save him or another passenger, Vincent Anthony Gragorace, 21, of Greenville.
Billenstein in March pleaded no contest to two counts of aggravated vehicular homicide and one count each of aggravated vehicular assault and operating a vehicle under the influence of alcohol or drugs of abuse. He was sentenced to prison in May.
Toxicology tests given to Billenstein after the accident detected the presence of alcohol and marijuana. His blood-alcohol content was 0.11; a driver is considered legally impaired at 0.08.
The lawsuit states that officer Powell, 27, who has been with the police department since Aug. 2, 2010, failed to arrest Billenstein for driving while intoxicated.
According to the lawsuit, Powell stopped Billenstein after observing him driving at a high rate of speed in his blue Ford Mustang and swerving outside the marked lanes of travel.
The lawsuit also claims that Powell did not properly administer any field sobriety tests despite an odor of alcohol coming from inside the vehicle and an admission by the passengers that they had been drinking. The court document also alleges that Powell did not perform his duty as an officer after witnessing Billenstein drive erratically at a high rate of speed while knowing he had numerous past driving convictions, including an alcohol-related offense.
The lawsuit claims that Billenstein admitted to Powell he was coming from a local bar but the officer opted to release him with only a lane violation warning.
A report written by Powell on July 18 states he saw Billenstein driving at a high rate of speed that morning and he performed a traffic stop in a parking lot on Main Street.
Powell in the report states that while waiting for Billenstein to produce his driver's license, registration and proof of insurance, he detected a "slight odor" of alcohol coming from inside the car. When Powell asked Billenstein if he had been drinking, the officer said Billenstein denied it but noted his passengers had and he had just picked them up.
Powell also stated in his report that he did not detect an odor of alcohol from Billenstein, but since there was an odor in the vehicle he asked Billenstein to submit to an eye test to ensure he was not impaired.
The eye test was performed with Billenstein still seated in his car, the police report stated. According to Powell, the results showed no indication of any impairment. Without any probable cause to retain Billenstein, Powell issued him a warning and told him to slow down, the report noted.
Shortly after the traffic stop, Powell learned Billenstein was traveling southbound on U.S. 127 in speeds topping 100 mph, the officer stated in his report. Powell reportedly contacted another officer, advising him he had just stopped Billenstein in Coldwater and he believed the speeding vehicle was Billenstein.
Powell stated in his report that he was asked to go to the Mercer Health emergency to identify Billenstein and Wentworth. As he entered the hospital, Powell said in the report he could hear Billenstein yelling and crying that he had "killed his friends."
Powell was not suspended after the crash, according to Coldwater Police Chief Jason Miller.
The lawsuit claims Wentworth suffered severe and permanent physical injuries; great pain and suffering, both physically and emotionally; incurred medical expenses and will incur more in the future; suffered loss of wages and earnings; and will continue to lose earnings and wages.
Gengler's next-of-kin, whom the lawsuit does not identify, claim they have suffered monetary losses, Gengler's care, attention, assistance, advice, guidance, counsel and instruction.
Lopez declined to comment on the lawsuit. Lynnette Dinkler, attorney for the village and Powell, could not be reached for comment.
Common pleas court judge Jeffrey Ingraham during Billenstein's sentencing earlier this year also ordered a lifetime operator's license suspension and a mandatory fine of $375. He also ordered that Billenstein not be eligible for early release.
Billenstein has appealed the sentence to the Third District Court of Appeals requesting a new trial. He seeks suppression of his statements to law enforcement and the results of blood/urine tests taken following the fatal accident.
The court of appeals has not ruled on the matter.