HOT SULPHUR SPRINGS — The Grand Lake man involved in a vehicle-pedestrian collision on July 4 near Grand Lake was advised of charges filed against him in 14th Judicial District Court on Thursday, Sept. 19.

Lucas Paul Ackerman is scheduled to appear in Grand County Court at 1 p.m. on Oct. 2 for a preliminary hearing, where the prosecution likely will establish probable cause. After the preliminary hearing, the case is set to be moved to 14th Judicial District Court for arraignment.

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Ackerman, 33, is being charged with one count of vehicular homicide, three counts of vehicular assault, one count of driving under the influence, and two counts of child abuse.

In the beginning stages of the case against Ackerman, the District Attorney’s Office for the 14th Judicial District opted to present the case to a grand jury, due to the possibility that Ackerman could have a “colorable defense” in the case, said Assistant District Attorney Han Ng.

The question in Ackerman’s case is whether the root cause of the incident was some members of a family of 10 from Estes Park crossing the highway that night, or whether Ackerman’s conduct was the cause.

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The incident led to the death of the father of the family and serious injury to the mother and three children.

In defending Ackerman, Ackerman’s attorney Jack Dicola of Hot Sulphur Springs, may attempt to show the proximate cause of the accident was the family being in the road.

Meanwhile, the DA may try to establish Ackerman’s conduct of drinking and driving was the cause of the accident.

Defense

A July 24 Colorado State Patrol report of the accident’s investigation, some of which Ackerman’s attorney provided to the Sky-Hi News, states that even if Ackerman was sober at the time of the crash, the accident would still have occurred.

The report states the Westley family contributed to the crash because the crash occurred in the travel portion of the highway, and the family crossed at an “area of the highway that had no crosswalk and was very dimly lit.

“The pedestrians were wearing dark clothing,” the report continues, and there were “no traffic control devices” at the scene of the crash.

“Had a sober driver been operating the 2006 Ford pickup truck at the same moment and same spot of the crash, the result would have likely been the same,” the report states.

“The family failed to yield the right-of-way to Mr. Ackerman’s vehicle,” the report goes on to say.

PEOPLE

Instead of convening a grand jury, the district attorney’s office has chosen to press charges against Ackerman due to a discovery of case law, according to Ng.

Ng identified the case as “The People of the State of Colorado v. Earl Wayne Garner,” of 1989.

Garner was charged with vehicular homicide after the vehicle he was driving hit and killed a 12 year-old girl in Colorado Springs after she ran in front of the pickup truck he was driving. Garner was drunk at the time of the accident, though witnesses stated that he was not weaving, speeding or driving in a careless manner.

Officers who investigated the case testified that the proximate cause of the accident was not Garner’s conduct, but rather the accident resulted because the girl ran between traffic and crossed in front of the vehicle.

Investigating officers also testified that if Garner had been driving the posted speed limit, the accident still would have occurred.

In the Garner case, a trial court dismissed a vehicular homicide charge against the man after concluding the act of speeding and not the intoxication of the defendant was the proximate cause of the death of victim.

This dismissal was reversed by the Colorado Supreme Court, which found the conduct at issue was “the voluntary act of driving while intoxicated.”

The Supreme Court established through previous case law and former Colorado House Judiciary Committee hearing findings that “if a person voluntarily drives a car and is intoxicated and that conduct, driving while intoxicated, is the proximate cause of the death of another, then the person is guilty, under those circumstances, of vehicular homicide.”

The Supreme Court concluded “the conduct at issue for the purposes of proximate cause is the voluntary act of driving while intoxicated.”

Facts behind the case

The incident left one pedestrian dead and four others, including a 3 year-old, with serious bodily injuries,

The state patrol reported Ackerman’s blood alcohol content the night of the accident was allegedly 0.156, three times the BAC content for a DWAI (driving while ability impaired) and nearly twice the limit for a DUI (driving under the influence).

The family of 10 from Estes Park was visiting Grand Lake to watch the Fourth of July fireworks and was walking across Highway 34 around mile marker 12, roughly three miles south of Grand Lake, when Ackerman’s vehicle collided with the family.

The accident left the father of the family Gregory Westley, 50, dead at the scene and prompted helicopters to transport his wife Debbie, 48, her two daughters, age 10 and 18, and her 3 year-old son to Denver area hospitals with severe injuries.

Ackerman’s wife and two children, ages 7 and 8, were passengers in the vehicle at the time of the accident. Ackerman was charged with two counts of child abuse for placing his two children in “unreasonable risk of injury,” according to the arrest affidavit.

Vehicular homicide carries a possible penalty of four to 12 years in jail and up to $750,000 in fines, with an exceptional conviction of up to 24 years in jail.

“Criminal charges are merely allegations, and Mr. Ackerman is presumed innocent of all charges unless or until proven guilty,” states a press release sent on Friday, Sept. 13, from the district attorney’s office.

Ackerman was arrested and booked into Grand County Jail following the crash, and was released on a $40,000 bond following his second appearance in Grand County District Court on July 9.

Reid Tulley can be reached at 970-887-3334