May 22, 2014 8:54 AM by Nichole Szemerei
TUCSON - A family wants something done after their loved one was hit and killed in a Tucson crosswalk. The driver was found guilty of a class 3 misdemeanor. News 4 Tucson Investigators looked into why this family wants a change in the law.
The Sagastume family believes the driver should have faced a different punishment for hitting and killing their family member, Eddie. There was no evidence the driver was under the influence of any kind of drugs or alcohol. Because there was no evidence of impairment -- a blood sample was not taken. That is where this families' search for a change in the law began.
"They were concerned more with whether or not he was a quarter inch from the yellow line. Listen, he was found a couple hundred feet from the yellow line," says Joseph Sagastume, the victim's brother.
The accident happened on Grant Road, east of Swan, at Arcadia Avenue. Initial reports had conflicting information and said Eddie, was not in the crosswalk.
"The basics of just knowing where north and south, east and west are. I actually flew into Tucson and did a walk-through of the report and found so many mistakes that you might as well just file it in the blue cabinet. It was very poorly done," says Joseph.
The report was later corrected and showed Eddie was in the crosswalk.
"These investigations are fluid; things are changing all the time. The officers aren't the ones doing follow-ups so as the detectives begin to do follow-up, they start to find out other things," says Sgt. Pete Dugan.
TPD says a highly trained drug recognition officer was on scene to investigate, finding no probable cause to believe there was impairment.
"He looks at the eyes, he'll look in the mouth, he does breath tests, things like that. If we don't have enough probable cause to go further and he doesn't see any signs of impairment, then that's his ruling right there, there's no signs of impairment," says Dugan.
The question then becomes: is it okay to test anyone who is involved in a fatal accident?
"We start getting into violating people's rights and obviously for us in law enforcement, yeah, it'd be great if we could tell if somebody's under the influence just because we could drug test everybody, but we're not gonna do that, that's never going to happen," says Dugan.
Deputy County Attorney, Ryan Schmidt agrees. He says according to the law, TPD did what's allowed.
"The hardest thing is to call up a family and say here's why we can't do anything about it. Getting someone's blood or breath or urine from them is a search under the federal and state constitution, so we need probable cause," he says.
District 9 Representative, Ethan Orr, agrees with the Sagastume family. Saying hitting and killing someone in a crosswalk should be enough for probable cause.
"Next year on the judiciary, I intend to look at this. When you get into the nuances of the law, it can be convoluted and complicated, but if I were to ask someone on the street, just walking down the street and said ‘this person hit and killed someone, should they be tested?' most people would say yes, and I think the law in this case should reflect that opinion."
But does that go against our 4th amendment rights?
"I teach constitutional law at the U of A, and I'll tell ya, this is clearly not a violation of someone's 4th amendment rights. They violated the law and at that point, your expectation of privacy goes way down," says Orr.
The family hopes that a law can be passed that will give law enforcement the ability to test a driver's blood after any fatal accident, even if there is no probable cause.
"You need to speak up. It's not good enough to be the victim, because if you sit here and be the victim, you're going to be the victim the rest of your life," says the victim's sister, Evelyn.
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