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Published December 10 2012

Semi driver charged with manslaughter in death of Fargo motorcyclist

FARGO – Since the June 4 motorcycle crash that injured 10-year-old Elijah Viestenz and killed his father, all the boy has wanted people to know is that the accident wasn’t his dad’s fault.

Now, Cass County prosecutors are going to try to prove it.

Charges of manslaughter and aggravated reckless driving have been filed against the driver of the semi that was struck by the motorcycle carrying Eli and his 29-year-old dad, Jason Viestenz.

The charges accuse 56-year-old James Toner of making an improper right-hand turn across several lanes of traffic at the intersection of 25th Street and 23rd Avenue South, near Ruby Tuesday’s and Cenex Zip Trip.

The majority of the 7 a.m. accident was caught on video by a traffic camera mounted at the intersection, according to the police report.

Police later restaged the semi’s turn using a similar-sized rig and a driving instructor from the North Dakota State School of Science. He told police the maneuver, known as a “jug turn,” isn’t recommended and the driver’s actions were a gross deviation from standards, the report states.

“In the prosecution of this case, I want to send a message that this kind of driving on our city streets is not acceptable, and when it results in a death, this type of charge will be charged,” Assistant Cass County State’s Attorney Cherie Clark said.

Eli’s mother, Cassie Hanson, said Monday that initial reports about the accident were incomplete, and everyone in the family understood it would eventually become clear the accident wasn’t Viestenz’s fault – everyone except Eli, that is.

“He was so upset that they were blaming Jason,” she said. “He’s like, ‘My dad didn’t do anything wrong. I know he didn’t.’ It affected him more than anybody. So I think having this come out, it’s going to put him at peace.”

Calls to Toner’s cellphone went unanswered Monday. His voicemail box was full and didn’t allow a message to be left.

His court-appointed attorney, Gordon Dexheimer, did not return a message.

Toner, of Long Prairie, Minn., made his initial court appearance Nov. 23 and posted $5,000 bond for his release. He is scheduled to appear in Cass County District Court on Dec. 20 for a preliminary hearing and arraignment, at which time the defendant normally enters a plea.

He faces up to 10 years in prison if convicted of the Class B felony manslaughter charge and up to one year for the Class A misdemeanor aggravated reckless driving charge for the injuries to Eli.

According to police reports filed in court:

On June 4, Toner was hauling a bulldozer from Moorhead to Valley City. He believed that one of his safety chains had come loose, and he exited I-94 at 25th Street and headed toward the Cenex station to check the chains.

Two men in a white Ford truck were following Toner in case there was a problem with the bulldozer during transport, but they told police they weren’t acting as a follow vehicle.

The video shows Toner traveling south on 25th Street and merging from right to left to prepare for his right turn. By the time he reached 23rd Avenue, the semi was all the way in the southbound left-turn lane and part of it was in the northbound left lane of oncoming traffic.

Toner told police he needed to take that position on the roadway so he could make the turn onto 23rd Avenue without hitting a vehicle that was waiting to make a left turn.

“Toner said he did have his right turn signal on the entire time,” the report states.

Viestenz was driving in the left southbound lane and never moved from that lane until just before impact, the report states. A tire mark on the road showed that Viestenz tried to move to the right to avoid the accident.

The driver of the white Ford following the semi said he honked his horn to try to warn Viestenz that the semi was about to turn.

He and his passenger also told police they tried to straddle the two southbound lanes to block traffic from approaching the semi. The video shows that when they tried to straddle the lane, it caused Viestenz to move to his left in his lane, but “at no point” did the Ford ever straddle both lanes, the report states.

A witness who was on a motorcycle following Viestenz told police he realized the semi was preparing to make a right turn and he slowed down. He said it appeared to him Viestenz had attempted to drive around the semi.

However, “The video and evidence found on the roadway does not support this,” the report states.

The motorcycle struck the semi in the right front corner, throwing Viestenz and Eli from the bike.

Viestenz wasn’t wearing a helmet and died as a result of severe head injuries. Eli, who was wearing a helmet, was treated for minor cuts and bruises.

During the investigation, police interviewed Brian Ware, an NDSCS commercial vehicle instructor and driver with more than 20 years of experience. He said that to make the turn from 25th Street onto 23rd Avenue, he instructs students to wait for traffic on 23rd Avenue to clear, or to drive around the block.

Ware said there are rare occasions when a jug turn would be required, but that Toner didn’t perform it from the correct position on the roadway.

On Aug. 9, police provided Ware with a semitrailer that was 1 foot shorter than Toner’s and set up cones on 23rd Avenue to represent the vehicle waiting to turn. After demonstrating the turns, Ware said the only way Toner would have been able to make the turn without striking any vehicles was the way Toner did it – by swinging way to the left into oncoming traffic on 25th Street.

Ware said at that time that “he no longer considered Toner’s actions a gross deviation,” the police report states. But in a follow-up interview Sept. 11, Ware clarified he was referring only to the turn itself, and that he believed Toner’s actions were a gross deviation from standards.

“Brian told me the driver of the semi made a very poor choice to make this turn and should have realized upon his approach he could not have safely made the turn,” Detective Chris Kunszt wrote in his report.

“Brian said the maneuver the semi driver made is not taught and is not recommended because it opens the driver up to allowing vehicles to come up alongside of the truck, which creates a highly dangerous situation where an accident will happen,” Kunszt wrote.

Hanson said the family is glad charges were finally filed in the case.

“We just hope that it’s a speedy trial and things get going, and we just want it to all be done,” she said.

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Readers can reach Forum reporter Mike Nowatzki at (701) 241-5528