PAGE A2, KEIZERTIMES, MARCH 04, 2022
DRIVING: ‘It looks like I,
yeah. I definitely had more...’
Continued from page A1
Andrew arrived at the house and
spoke to Thomas’s fiance for several min-
utes before realizing Thomas was miss-
ing, according to the police affidavit. He
only discovered what had happened after
police and medics arrived, which records
show was at 8:33 p.m.
Andrew didn’t speak to police until
the next day, making it unclear what his
blood alcohol content was at the time
of the accident. He told Keizer police
during interviews on Sept. 6 and 9 that
he had three beers at the bar.
“It looks like I, yeah. I definitely had
more alcohol than I remember. And that I
was too intoxicated to be in charge of my
brother’s safety,” Andrew would later say
to police, according to records.
Modine’s lawyer in the current case,
Marc Gunn, didn’t respond to requests
for comment.
The investigation
Katie Suver, a Marion County dep-
uty district attorney, said the 2015 case
presented unique factual and legal
challenges.
“If Mr. Modine had proceeded to
trial and been acquitted he would have
received no punishment. It is certainly
true that if Mr. Modine had gone to trial
and been convicted, he might have still
be in custody,” Suver said.
The first issue for prosecutors was
proving that Andrew was driving under
the influence of alcohol. According to
Suver, there was evidence Andrew was
intoxicated from alcohol but no DUII
investigation was conducted “due to the
fact Andrew was not identified as the
driver until long after medics and police
treated Thomas in the street.”
Additionally, while he had a valid
Oregon license, Suver said Andrew was
vision impaired on his right side.
The second issue concerned whether
Andrew’s driving was the reason Thomas
fell from the vehicle. According to Suver,
the 1950s pickup truck had no power
steering and a passenger door that didn’t
properly latch. Thomas Modine was not
wearing a seatbelt and was “extremely
intoxicated” at the time of the accident,
according to Suver.
“The main issue in the criminal case
turned on causation – and whether the
defendant’s driving caused his brother’s
death or whether his brother just fell out
of a vehicle,” said Suver.
After a 10-month investigation,
Modine was charged with criminally neg-
ligent homicide, driving under the influ-
ence of intoxicants and failure to perform
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duties of driver to injured persons.
A month later, prosecutors offered a
deal – plead guilty to all counts and serve
three years in prison followed by three
years probation. Modine rejected the
offer.
Because of the more recent charges,
Keizer police said they were directed by
Clarkson's office not to comment on the
2015 case - making certain investigation
details unclear.
“Unfortunately, there are criminal
cases where the evidence is overwhelm-
ing and criminal cases where the evi-
dence is scant,” Suver said.
The deal
Prosecutors went back to Modine with
a new offer in late 2016 – plead guilty to
two of the charges and avoid a prison
sentence.
Suver said prosecutors met with
Debra Daellenback, mother of Thomas
and Andrew. She “was opposed to her
son Andrew serving jail time,” Suver said.
“Ultimately, any plea offer made in
a criminal case is an evaluation of the
strength of the state’s evidence, the
likelihood of conviction at trial, the
defendant’s willingness to take account-
ability, and the laws governing sentenc-
ing,” Suver said.
She added that the case “turned on
whether the defendant acted with crim-
inal negligence.”
Criminal negligence, according to
Oregon law, occurs when someone is
unaware that their conduct involves a
“substantial and unjustifiable risk” that is
a “gross deviation” from what a reason-
able person would do.
Under Oregon’s crime grid, crimi-
nally negligent homicide, when related
to a DUI, carries a sentence between 61
to 65 months. The charge is also a Class
B felony, which carries a maximum of 10
years in prison under Oregon Sentencing
Guidelines.
“Had Mr. Modine proceeded to trial
and been convicted of criminally neg-
ligent homicide, the court could have
sentenced him to probation or sentenced
him up to 120 months in prison. Both
of these outcomes were unlikely,” Suver
said.
With the most serious charge
dropped, Modine still faced up to 40
months in prison.
But under terms of the plea, he wasn’t
going to prison. Prosecutors instead
agreed to 60 months probation, with a
stipulation that any probation violation
would send Modine to prison for 40
months.
On April 20, 2017, Modine, his law-
yer and prosecutors went before Marion
County Circuit Court Judge Tracy Prall
to present the plea deal during a sentenc-
ing hearing.
“It would be fair to say that any vio-
lations based on intoxicants or use of
drugs would likely be a recommendation
of revocation by the state,” said Fischer.
Prall emphasized this condition to
Modine, saying “something you just
know, I cannot drink and drive or use
controlled substances. I cannot or I go to
prison. That’s the message you need to
have here.”
Modine was also given a chance to
speak during the hearing.
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