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Published January 16 2013

Judge finds cause for manslaughter charge in fatal Fargo truck-motorcycle crash

FARGO – A judge upheld a manslaughter charge Wednesday against a truck driver who was making a right-hand turn when a trailing motorcyclist fatally struck the rig on June 4 in south Fargo.

The attorney for 56-year-old James Toner of Long Prairie, Minn., argued that the level of the charge – punishable by up to 10 years in prison and a $10,000 fine – was too high.

“It was a terrible accident,” public defender Gordon Dexheimer said in Cass County District Court. “But a criminal act, your honor? Manslaughter, a Class B felony? I just don’t see it.”

Judge Frank Racek said there was probable cause to support the charge, and Toner pleaded not guilty to manslaughter and aggravated reckless driving, a Class A misdemeanor carrying up to one year in prison and a $2,000 fine.

The June 4 crash resulted in the death of 29-year-old Jason Viestenz of Fargo. His 10-year-old son, Elijah, who was riding on the back on the bike, was wearing a helmet and suffered minor injuries.

During Wednesday’s contested preliminary hearing, Assistant State’s Attorney Ryan Younggren played a video of the crash recorded by a traffic camera mounted at the intersection of 25th Street and 23rd Avenue South.

The video shows Toner gradually merging from right to left on southbound 25th Street so he can make the right turn onto 23rd Avenue without hitting a car waiting at the intersection to make a left turn.

Dexheimer said Toner had been concerned about the bulldozer on his trailer coming loose, so he exited Interstate 94 and headed toward the Cenex station at the intersection to check the load. Toner told police he had his right-turn signal on the entire time, which was corroborated by witnesses.

Viestenz, who was riding in the left southbound lane, didn’t change course until just before impact, Fargo police Detective Chris Kunszt testified.

“The motorcycle driver, as far as we can tell, committed no violations,” he said.

Two of Toner’s co-workers were driving in a pickup behind the semi to help out if there was a problem with the load, but they weren’t acting as a pilot car, Kunszt said. They honked at Viestenz to try to get his attention just before the crash, he said.

Another prosecution witness testified that the “jug handle” turn performed by Toner isn’t taught because it leaves lanes open for traffic to slip between the curb and the turning semitrailer.

“I was very surprised that that turn was even made in that fashion,” said Brian Ware, a commercial driving instructor for the North Dakota State College of Science.

Ware said the crash was “very preventable,” explaining that Toner, if he was going to do a jug handle turn, should have been closer to the intersection with his trailer closer to the curb when he started the turn.

Younggren also referred to the North Dakota Department of Transportation’s Commercial Drivers License Manual, which contains a diagram labeling a jug handle turn as “INCORRECT.”

The manual states that drivers shouldn’t turn wide to the left when starting a right turn.

“A following driver may think you are turning left and try to pass you on the right. You may crash into the other vehicle as you complete your turn,” the manual states.

Ware said he wouldn’t have tried a jug handle turn as Toner did, and instead would have waited for the car on 23rd Avenue to clear the intersection so he could make a button hook turn. He said Toner’s turn was a gross deviation from acceptable standards.

On cross-examination, Ware acknowledged that while jug handle turns aren’t taught, they are used in practice.

“It’s not a safe thing to do. It’s not a common thing. But they are done,” he said.

Toner’s next court appearance is set for Feb. 13.

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

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