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Elko County Deputy Sheriff Acquitted

Posted on Saturday, April 01, 2006 at 12:00PM
Posted by Mark A. Kilburn

On June 22, 2005 Deputy Mike Moore of the Elko County Sheriff’s Office in Elko, Nevada, was dispatched to an emergency call south of Elko involving a suicidal subject with a gun. Two other deputies were on scene, but needed Moore at the location immediately as a prior call of this type at a different location had resulted in the suspect confronting the initial responding officers with a gun, ending in a dangerous exchange of gunfire.

Due to the priority of the call, Moore responded with lights and siren heading south on the four-lane divided highway between Elko and Lamoille, Nevada. As it so happened, the call occurred shortly after 5 p.m. and as such Moore encountered heavy rush hour traffic clogging both southbound lanes of travel. Seeing that the northbound lanes were substantially clear for the foreseeable distance, Moore went into the fast lane of the northbound portion of the highway and proceeded to pass the southbound traffic. Most traffic slowed and attempted to yield to the right as best they could considering the heavy traffic in both southbound lanes. The remaining drivers did not or could move over but maintained their lane.

As Moore approached Lamoille Canyon Road, which intersected the highway to his left, the driver of a full sized Ford Bronco inexplicably failed to yield and turned left directly into Moore’s path. Moore steered his Explorer patrol vehicle to the left to avoid the offending driver, but the left front of the Bronco clipped the right rear of the Explorer in a manner one witness described as “like a pit maneuver”. The impact sent Moore’s vehicle into a violent pitch and he left the road rolling several times until the Explorer came to rest off the side of the highway. Multiple witnesses to the accident rushed to aid Moore, however, the driver of the Bronco left the scene of this injury accident, unlawfully fleeing down Lamoille Canyon Road instead of stopping to render aid to the officer he had injured.

The Nevada Highway Patrol and members of the Elko County Sheriff’s Office responded to the scene. The fleeing driver’s escape was short lived as witnesses had noted his direction of travel and the impact with Deputy Moore’s vehicle had knocked off the front bumper of the Bronco with the front license plate attached. The information from the witnesses and the evidence at the scene led officers to a ranch near Lamoille, where the driver was found and arrested by the Nevada Highway Patrol for felony leaving the scene of an injury accident and not having a license. The driver admitted to officers that he had in fact left the scene because he did not possess a driver’s license and was afraid of being arrested after turning in front of Moore. The Nevada Highway Patrol took control of the accident investigation due to the involvement of an Elko County deputy in the incident. The investigation was later turned over to the Elko County District Attorney’s office.

Despite the unequivocal evidence from the witnesses at the scene and the admissions of the driver himself, the Elko County District Attorney refused to charge the driver of the Bronco with leaving the scene of an injury accident, or even the failure to yield to an emergency vehicle, and instead charged him with the minor violation of “No Valid License”, for which the violator paid a small fine. In a further and even more inexplicable move, approximately four months after the accident, the Elko County District Attorney charged Deputy Mike Moore with a misdemeanor charge of “Failing to Use Due Care”, i.e. careless driving, citing NRS 484.361, Nevada’s basic speed law as the basis for the charge.

During discovery, it was revealed that the Nevada Highway Patrol had mapped the scene and ultimately a member of that department, who had never before this case made determinations as an accident reconstructionist concluded through the use of “yaw calculations” that Moore was traveling approximately 87 mph when he began his maneuver to avoid the Bronco that had turned in front of him. Multiple southbound witnesses, including some members of law enforcement, whom Moore passed, reported that Moore was only going 60-65 mph prior to the Bronco turning in front of him. Thanks to the plan provided to Deputy Moore by LDF, I was able to retain Jerry Barnes of Barnes Accident Reconstruction, who was a retired member of the Nevada Highway Patrol as an expert. He reviewed the evidence and accident reconstruction in this matter and determined that Moore was going 65 to 68 miles per hour before taking the evasive action. Barnes’ assistance was also invaluable to show the inherent problems with determinations by the use of the yaw method of calculating speed in a roll over accident of this type.

On February 28, 2006, trial was held before the Honorable Mary Leddy in the Elko County Justice Court. During cross examination, we were able to show the inherent problems with the yaw methodology used to determine Moore’s speed in this case and we were able to establish that the driver of the Bronco, unlike every other driver involved, failed to yield or maintain his direction of travel and that Deputy Moore’s method of emergency response to this serious call was proper. Additionally, the state’s first witness, a law enforcement officer traveling southbound in the pack of cars, testified that he was going approximately 55-58 mph, and that Moore only passed him “steadily” at approximately 10-15 mph faster. He stated there was no way Moore was going 87 mph or anywhere close to that speed.

After nearly a full day of trial and at the close of the state’s evidence, we moved the court for a finding of “Not Guilty”. First, we argued that pursuant to NRS 484.261, the driver of an emergency vehicle displaying lights or siren while responding to an emergency call may expressly disregard any speed limitation under the law and may disregard any regulation regarding direction of movement or turning. Since the charge against Deputy Moore was “Due Care” under the speed law, NRS 484.261 established criminal immunity from such charge. Additionally, we argued the evidence showed that Moore was lawfully traveling to an emergency call with lights and siren, and the only failure to use due care that existed in this incident was exhibited by the driver of the Bronco, who, while unlawfully driving without a license, illegally turned in front of the deputy causing the entire incident and then became a fleeing felon by leaving the scene. Finally, we argued that the evidence before the court established the inherent flaws in the yaw calculation, which problems were candidly admitted by a testifying supervisor of the Nevada Highway Patrol, and such evidence could not establish a violation of the law sufficient to overcome the immunity or causation aspects of the case.

After argument, Judge Leddy agreed with our positions and found Deputy Moore “Not Guilty” of the charge. Moore is understandably elated by this vindication of his actions and is thankful to LDF and all parties who aided in the proper defense of this case.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.