Point, Counterpoint: attorneys debate plea agreement dynamics, impacts in County Fire Truck accident traffic case

Made aware of a peripherally involved party’s attorney’s issue with a plea deal negotiated by the Warren County Commonwealth Attorney’s Office in the traffic court case involving a Warren County Fire & Rescue fire truck, Royal Examiner first contacted that attorney Demetry Pikrallidas. The Fairfax-based Pikrallidas represents Front Royal-based Kevin Velasquez. Velasquez, 24, was badly injured in the November 11, 2021, accident involving that fire truck driven by 25-year-old volunteer firefighter Conor Wright.

On Wednesday, March 16, the Commonwealth, represented by Assistant Commonwealth’s Attorney Neal Knudsen, entered into a plea agreement with Wright and his counsel in which an original Class 1 Misdemeanor charge of Reckless Driving was reduced to the lesser charge of Improper Driving. Wright was allowed to enter a “not guilty” plea but accept a guilty finding in the case without going to trial. Warren County General District Court Judge W. Dale Houff accepted the agreement over the objection of Velasquez’s attorney.

Wright was fined $500, with $100 suspended, and ordered to pay court costs reduced to $74 by the avoidance of a trial. On the originally issued Reckless Driving misdemeanor charge filed in the wake of a Virginia State Police investigation of the accident, Wright had faced a maximum fine of $2,500 and up to 12 months in jail. But it was not Wright’s reduced penalty on the traffic violation that angered Velasquez’s attorney. Rather, it was what Pikrallidas sees as a lack of interest by the Commonwealth in his client’s interest in the resolution of the traffic case in an accident in which that client was seriously injured.

Damage to the 2013 Toyota Takoma pickup truck driven by Kevin Velasquez after November 2021 collision with County fire truck described at a weight of 33,700 pounds. Courtesy Photos WC Commonwealth Attorney’s Office/VSP

Contacted by phone Friday, March 18, Pikrallidas estimated his client’s medical costs as approaching $100,000. And while he said his client was insured, fault and insurance liability for the accident is likely to be one primary issue in a pending civil suit Pikrallidas says his client will file because of damages suffered as a result of the accident. In addition to the still-rising medical expenses – Velasquez continues to receive physical therapy for a badly injured leg, his attorney said – his client lost 110 days of wages from work missed as he recovered from his injuries. According to the Va. State Police accident report, the collision occurred when Velasquez’s 2013 Toyota Takoma pickup truck and the 33,700-pound fire engine driven by Wright collided after the fire truck crossed the centerline to avoid rear-ending a vehicle stopped to make a left turn. Pikrallidas noted it took emergency responders a half hour to extricate his client from his vehicle. Velasquez was Medivaced by helicopter from the scene to INOVA Fairfax Hospital for treatment for his injuries, which while deemed non-life-threatening, were serious, his attorney pointed out.

Contacted, Warren County Fire & Rescue reported that the three involved firefighters were transported to the local hospital for examination and/or treatment of minor injuries. All have returned to active duty, Fire Marshal Gerry Maiatico told Royal Examiner. Wright was placed on “restricted driving status” and the leadership of Front Royal Company One and the Warren County Department of Fire & Rescue will review the relevant court findings to determine Wright’s status moving forward.

One primary issue for Pikrallidas is that the plea agreement allowing Wright’s non-guilty plea to the lesser charge could weaken his and his client’s position in the coming civil liability litigation. “I’ve never heard of a plea like this,” Pikrallidas told Royal Examiner. And he noted that when he tried to address the court to explain his objection to the plea agreement, Knudsen objected to his being allowed comment as attorney for a non-involved party in the traffic violation prosecution. Judge Houff ruled for the Commonwealth, the judge citing a desire not to create a precedent of allowing third-parties in Commonwealth-prosecuted traffic cases to testify. Pikrallidas said he noted his client was a potential witness at trial, as well as a victim as an injured party in the accident resulting from the traffic violation case before the court. However, Knudsen countered to the court that “statutorily” Velasquez was not technically a victim in a traffic citation case between the Commonwealth and defendant.

Contacted about that exchange, Knudsen agreed that Velasquez was a “victim in the ordinary sense of the word”. However, referencing Va. Code 19.2-11.01 where “victim” is defined legally, the prosecutor stood by his courtroom assertion. An examination of the lengthy code titled “Crime Victim and Witness Rights” by this non-attorney seemed to indicate that “victim” was viewed in the sense of being victimized by an intentional felony offense act, as opposed to an unintended consequence of a misdemeanor act such as a traffic offense.

From his Fairfax office during our late afternoon March 18^th phone conversation, Pikrallidas said that to his mind the lack of interest in his client related to potential testimony at trial or a plea resolution in the case, raised the issue of a potential conflict of interest by the Warren County Commonwealth Attorney’s Office. That conflict would stem from the defendant’s position as a volunteer member of a County department, Fire & Rescue, in a case prosecuted by the county’s Commonwealth Attorney’s Office.

Contacted in his office Monday, March 21, Commonwealth Attorney John Bell responded to Pikrallidas’ conflict of interest and other concerns, which the two discussed March 16, prior to the agreement being entered in court. “I will say that protecting the Fire Department was absolutely no consideration in any plea negotiations that went on with this. I asked Knudsen particularly about this when it came up. He said the only time he even talked to anybody from the County was to see about getting a copy of the mechanical evaluation of the fire truck to make sure there wasn’t a mechanical failure that caused this accident; and also to see about the fire chief coming to testify if we needed him to introduce the mechanical evaluation.”

Information accumulated from the State Police accident investigation indicated that volunteer firefighter Wright was driving eastbound on Strasburg Road (Rt. 55 West) with two paid firefighters aboard as the trio returned from a fire call. Velasquez was traveling westbound, returning borrowed furniture to a friend according to his attorney. According to the original Va. State Police press release on the accident the fire engine “swerved to avoid hitting a stopped eastbound vehicle that was attempting a left turn.” That swerve took the fire truck across the center line of the two-lane road where the collision with Velasquez’s westbound 2013 Toyota Tacoma pickup truck occurred. The DMV crash report had the fire truck traveling at 55 mph in a 45 mph zone, VSP noted.

Damage to the side of the fire truck from the collision with Velasquez’s vehicle.

But Pikrallidas asserts he had expert witness testimony that would have been available in the traffic case had it gone to trial that would indicate the fire truck was traveling at 70 mph prior to recorded hard braking as the accident occurred. We asked both Commonwealth Attorney Bell and Assistant C.A. Knudsen about this proposed evidence indicative of perhaps reckless, as opposed to improper, driving.

“Well, Mr. Pikrallidas sent what appeared to be an analysis of the “black box” of the fire truck, which we got the day of the trial that was not available to us via the state police,” Bell began, adding, “The state police is our chief investigative agency. And the state police officer did a thorough job on the scene, reviewing the crash, taking appropriate photographs, and doing interviews. But what we did not have was any further expert (evidence). And I will say that we are limited in the criminal (traffic) case in terms of introducing accident reconstruction evidence. It’s not banned, but it’s a line you’ve got to walk very carefully,” Bell observed.

As to the reduced charge offered in the plea agreement, the commonwealth attorney explained that “a reckless driving charge is technically a misdemeanor. An officer cannot charge improper driving. It’s a lesser included offense that a court or prosecutor can reduce the charge to … As I said, Knudsen was the one that made the call between a plea to reckless or a plea to improper on this one. And he was the one who had all the information on the case. He made an offer to the defense, which the defense accepted, and I’m not going to second guess that.”

As to Pikrallidas’ concerns about the plea agreement potentially making his client’s position weaker in a civil liability case, Bell said rather than favoring either side in a potential civil trial, he views the plea agreement as neutral to both parties. All of the evidence that could have been introduced in the traffic case, including Pikrallidas’ late-arriving expert evidence on speed, will be available to be introduced in a civil case to argue liability, Bell pointed out.

Asked for additional detail on the timing of the plea offer, Bell referred us to his assistant prosecutor Knudsen, who was not available mid-afternoon that Monday. Contacted by email Tuesday, March 22, Assistant Commonwealth Attorney Neal Knudsen responded to our inquiry into the dynamics of the traffic case and plea agreement.

Knudsen told us he received the “expert witness” speed analysis from Pikrallidas at 12:25 p.m. on March 16, the day the trial/plea offer was scheduled at 2:45 p.m. He said the plea agreement was offered late the previous morning and accepted by Wright’s counsel Margarita Wood that day after a confirmation call with her client. Discussing the case’s resolution with us the previous day, Commonwealth Attorney Bell noted that plea agreements once offered and accepted are generally viewed almost at the level of contracts between parties, and not easily rescinded.

Knudsen also noted that the “expert” speed analysis report from a Powhatan-based “forensic collision reconstruction” firm Accident Technology Inc. (ATI) sent to Pikrallidas was dated March 16, indicating Velasquez’s attorney also received it the day the trial had been scheduled.

As to the lesser charge being offered in the plea agreement, Knudsen told Royal Examiner: “The reckless driving charge was entirely appropriate at the time it was brought, based upon the information available at the time of the accident. As we gathered evidence, I had a question in my mind about whether the Commonwealth would be able to prove all the elements of the offense beyond a reasonable doubt.”

In the absence of a typical reckless driving cause such as texting while driving, erratic driving in and out of traffic, a positive alcohol or drug test on the driver, or excessively high speed – at the time the plea was offered the prosecution had only VDOT’s estimate of a 55 mph involved speed – Knudsen chose caution in offering the plea.

“Having reviewed the available evidence, I had different theories as to what might have caused the vehicle to swerve into the other lane. The Supreme Court of Virginia has ruled that ‘when the Commonwealth’s evidence leaves much to speculation and conjecture as to what caused defendant to lose control of the car’ the evidence is insufficient to support a conviction of reckless driving within the meaning of the statute,” Knudsen observed, adding, “In the same opinion the Court ruled that the happening of an accident ‘does not give rise to an inference’ of reckless driving …”

Pikrallidas noted the Commonwealth negotiated the plea agreement without any communication with him or his client. In fact, Pikrallidas said he was notified by an involved third party about the plea deal at 4:06 p.m. the day before the trial was scheduled for 2:45 p.m. Wednesday, March 16. And with plea agreements often being heard prior to scheduled trial times, Pikrallidas said it was very possible he could have missed the entering of the plea deal the next day.

Commonwealth Attorney Bell said that in the wake of his communication with Pikrallidas the morning of the traffic case plea submission, he said he would see that the case and plea agreement offer was called at the 2:45 p.m. scheduled time the trial would have begun to facilitate Velasquez’s attorney’s attendance. Bell did offer that perhaps one constructive lesson learned from Pikrallidas’ concerns in this case, is for his department to reach out more to peripherally involved parties in similar cases, particularly ones who could be prosecution witnesses, as movement towards a trial or plea agreement proceed.