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State Patrol expert determines trooper at fault in injury crash, but WSP cited the other driver

“They took it a little personally,” the WSP crash expert said of superiors who cited a civilian driver, who was also injured in the crash.

SEATTLE — When a rookie state patrol trooper was injured in a crash on northbound Interstate 5 through Seattle last August, responding troopers called in an expert to determine who caused the accident.

That expert, a Washington State Patrol collision technical specialist, gave troopers answers that they did not expect or appreciate. He determined that Trooper Cadet Phirawat Apisit was responsible for the crash that left the driver of the other vehicle injured.

But a KING 5 Investigation reveals that Washington State Patrol supervisors pressed their case against the other driver, a trucker, even though video evidence and the collision tech’s report cleared the truck driver.

“I feel that they’re trying to cover up the fact that their officer was in the wrong,” said truck driver Shawn Foutch of Snohomish, who recently returned to work after spending months at home recuperating from the August 12, 2022 accident.

After KING 5 raised questions about the case, the Washington State Patrol announced that it was launching investigations into troopers who responded to the crash and their command staff.

Incident reports obtained through a public records request to the Washington State Patrol (WSP) show that the conduct of responding troopers raised red flags within minutes of the crash.

Three troopers wrote they “…sensed a strong odor of intoxicants” coming from Foutch as they questioned him about the accident. Troopers R.J. Klepac and T. Whales reported this to their sergeant on the scene, TJ Johnson. Johnson also wrote in his report “I thought I could detect an odor of intoxicants” coming from Foutch.

“That’s extremely funny because I don’t drink and I haven’t drank in decades,” said Foutch, explaining that he is a diabetic who cannot tolerate alcohol. 

Reports show that Foutch passed a field sobriety test and a portable breathalyzer test.

“Zeroes on alcohol,” said one trooper on a dash cam recording that KING 5 obtained from WSP.

Despite no evidence of intoxication, troopers asked Foutch to go to the hospital for a voluntary blood draw to test for drugs and alcohol. It also came back negative.

Foutch went home that night believing that he could put the incident behind him and heal from his injuries.

“In my mind, it was the officer’s fault because he didn’t take due care and precaution.”

But the Washington State Patrol had other ideas.

Soon after the accident, WSP received a copy of the dash camera video from the trucking company for which Foutch works. Like many commercial operators, his dash cam has a view of the driver, a forward-facing view of the road ahead, and data including the vehicle’s speed.

The 12-second recording shows Foutch’s truck traveling under the 60-mile-per-hour speed limit as he drives under the NE 50th Street overpass on northbound I-5. Flashing red lights can be seen ahead on the right shoulder of the freeway and a lone flashing red light starts to cross from the left shoulder of the highway to the right side.

“Because there (were) officers on the right-hand side I thought he was shooting across the freeway to try to get on that side of the freeway to (catch up to the other officers),” said Foutch.

Foutch moved his 80,000 lb semi-truck loaded with US mail three lanes over to the left to give the officers room on the right-hand shoulder.

The video shows the lone state patrol vehicle that was crossing the highway suddenly cut back to the left and turn into Foutch’s lane of travel.

“It’s not going to stop fast,” Foutch said of his truck that he was worried would jack-knife if he hit the brakes too hard.

Impact with the truck spun Apisit’s SUV patrol vehicle around and it came to a rest propped up on a jersey barrier.

Investigating troopers said Foutch’s dash cam video showed he “did not reduce his speed” sufficiently and “it was apparent that Trooper Apisit checked lanes prior to making lane changes.”  If that was the case, troopers did not explain why Apisit drove in front of a semi-truck moving at freeway speed.

On Apisit’s dash cam, another trucker can be heard asking the trooper if he is OK after the crash and then telling him that he saw the trooper cut off the truck.  

“It was definitely your fault,” said the trucker identified as Matthew Holiman in WSP incident reports.  Holiman said the same thing to troopers, but they described him as hostile and uncooperative.

Three months after the crash, Foutch received bad news in the mail.  He was stunned that WSP cited him for “negligent driving second degree,” which carries a $553 penalty.  It’s not a criminal charge, but it is significant for someone like Foutch who holds a commercial driver’s license.

“It’s extremely serious because they can and will revoke your CDL, so now I have no way to make a living,” Foutch said.

He hired Lynnwood criminal defense lawyer Lucas McWethy, who reviewed records and placed a phone call to the WSP collision tech who troopers called out to investigate the scene the night of the accident.

“During the interview, he did come right out and said that my client was not driving negligently and that he advised against citing him with a ticket,” McWethy said.

In a recorded interview, the WSP collision tech told the defense lawyer that Apisit improperly attempted a “rolling slowdown,” a technique designed to slow all lanes of traffic so that troopers ahead of him could pull onto the road after a DUI stop on northbound I-5. “It’s not really clear that a slowdown is happening,” he said pointing out tactics the rookie trooper used that were ineffective, unsafe and may have confused the drivers he was trying to slow down.

The collision expert said that he asked supervisors not to charge Foutch, but Trooper Apisit’s “…sergeant and his co-workers, they’re kind of, you know, they took it a little personally, I think, just because it’s, you know, their guy got hurt.”

“They all work with the officer that was involved in the accident and what it appears to me is that they all circled the wagons around him and are trying to insulate him from any possible backlash,” said McWethy, who has tried for months to have the case against his client dismissed.

WSP supervisors not only cited Foutch, but they also pressured prosecutors to pursue the case, according to documents KING 5 received through a public records request to the King County Prosecutor’s Office.

“I am trying to prevent this matter from slipping thru the bureaucratic cracks,” Sgt. TJ Johnson said in an email to King County prosecutors, urging them to subpoena more troopers and evidence for an upcoming court hearing.

In a separate voicemail message, Johnson told a prosecutor that Cadet Apisit “…was pretty seriously injured and has subsequently had a number of surgeries.”

On dash cam video, Apisit walks from the vehicle on his own and tells several troopers that he is OK.  He did ride to the hospital in an aid car and is listed as working on “light duty” in other documents from the prosecutor’s office.

Sgt. Johnson also emailed prosecutors on February 8 – more than four months after the crash - that WSP plans “…a more advanced review of Apisit’s collision,” seeking a second expert opinion “…most favorable for the prosecution” after the collision expert's damaging determination that the trooper was at fault.

King County Prosecutor’s spokesperson Casey McNerthney called the state patrol’s advocacy in the case “unusual,” but defends the prosecutor’s office handling of the infraction.

The prosecutor in the case dismissed the infraction against Foutch days after a call from the KING 5 Investigators.  But McNerthney said the decision to dismiss the negligent driving citation was unrelated.

McNerthney said the prosecutor subpoenaed the collision technician to testify about his report at a prior hearing, but the trooper did not attend.  McNerthney said there was a question about whether the expert had seen the dashcam videos that was not answered until nearly eight months after the crash.

When prosecutors learned he had seen the videos, they “…looked at the totality of the information and said, ‘We don’t think this should go forward and so we just dismissed it,” McNerthney said.

Sgt. TJ Johnson declined to speak with KING 5, referring a reporter to WSP’s communications office.

KING 5’s call with questions about the case got immediate action from Washington State Patrol headquarters.

“The infraction never should have been issued,” said WSP spokesperson Chris Loftis. “We didn’t meet our own standards of fundamental fairness."

Loftis said State Patrol Chief John R. Batiste ordered three separate investigations into trooper’s conduct, the night of the crash and in the eight months that have followed.  WSP’s Office of Professional Standards, the District 2 office where the troopers are assigned, and an assistant patrol chief have all launched separate investigations.

Loftis said WSP command first became aware of concerns about the case in February when eight uniformed troopers and a supervisor showed up at a court hearing in Shoreline where Foutch was present.

Loftis said the supervisor was “counseled” that he should not have officers show up at court hearings to intimidate defendants.

Yet, the infraction against Foutch remained active and the state patrol did not appear to make any attempt to dismiss it. Loftis said that is one of the issues that is now under investigation.

For the first time, the State Patrol is offering an apology to Shawn Foutch for an infraction it now says should never have been written.

“We’re rightfully being criticized on this.  I can’t be any clearer on that.  We were wrong and we apologize,” said Loftis.

“That’s a good start,” responded truck driver Shawn Foutch, when he learned of WSP’s apology. But after an injury, wages lost because he couldn’t work and the stress from the case, he’s not ready to forgive.

“I’m glad they admitted fault, but that does not nearly begin to make up for what they did,” Foutch said.

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