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Case Dismissed: No Penalty Against Brian Szmitko, Responsible for Death of Elisa Homen in Whiteview Wreck

| August 5, 2015

SZMITKO, BRIAN

Brian Szmitko in court today, listening to his attorney, Dan Leising, just before his hearing before County Judge Melissa Moore-Stens. (© FlaglerLive)

On Jan. 9, Brian Szmitko, 19, driving his 2007 Subaru, rear-ended the car Elisa Marie Homen, 22, was driving on Whiteview Parkway, catapulting her in the way of a full school bus. The crash killed Homen, who left behind a 3-year-old child and a young husband. The crash also sent 25 middle school students to the hospital for precautionary measures. None was seriously injured.


A Florida Highway Patrol investigation found that Szmitko had been careless, but not criminal. Today (Aug. 5), even the careless driving charge against him was dropped, and Szmitko walked off, free of any penalty or so much as points on his license for the crash, let alone a license suspension.

The reason? “The Uniform Traffic Citation is defective in nature,” Szmitko’s attorney, Dan Leising, said as he made a motion to have the citation dismissed outright this morning before County Court Judge Melissa Moore-Stens. The citation, the attorney said, merely states that Szmitko was accused of careless driving without “sufficient facts and circumstance” to support the accusation.

Case law, including a Florida Supreme Court decision, supports the attorney’s position that, absent such explanation on the citation, however minimal, a citation is invalid. “It should be dismissed,” Leising said.

When the judge asked three Florida Highway Patrol troopers if they had any rejoinder, including trooper K.L. Cooley, who write the citation, they were almost wordless.

“I don’t think I have any choice but to grant the motion to dismiss,” the judge said.

So it was. Szmitko was in court. He walked out with his attorney, shook his hand, then walked away. Deborah Prince, Homen’s mother-in-law, was also in court. She was wordless at first, then dejected, calling the outcome “wrong.”

Had the case not been dismissed, Szmitko did not face a steep penalty: a $166 fine and possibly a suspension of his license for six months or more.

elisa marie homen crash

The crash that killed Elisa Marie Homen took place at the intersection of Whiteview Parkway and Ravenwood Drive in Palm Coast. Click on the image for larger view. (© FlaglerLive)

“Traffic court is very rule-specific,” Leising said. “You get into the situation where any traffic court lawyer is going to first and foremost look at that ticket. You’ll find that a lot of tickets, fortunately or unfortunately I guess, depending on how you view it, can be fatally defective like that one was, and it makes sense, you know. People talk about technicalities. It’s really not. It’s really just rule-following. For example, if you or I or he was accused of careless driving or reckless driving, we should know what it is they’re saying was careless or reckless about our conduct in order to either defend it ourselves or hire a lawyer to defend it. And that’s why it’s a very important aspect of the ticket. Again, I’m not saying that it’s a baseless allegation, I’m saying we don;t know what it means. Was he careless? I don’t know. The troopers were not there, we weren’t there, and they’re often, in their defense, left to try to come after the fact and make sense of what happened without seeing it, which can be difficult.”

He said if the trooper had merely written on the ticket that Szmitko was “following too closely, I don’t make that argument,” Leising said. The attorney termed himself at most “surprised.”

“Terrible tragedies happen, and unfortunately sometimes they’re the result of criminal conduct, and sometimes they’re the result of accident,” he said. “The fine is $166, that’s not going to ruin anybody’s life, but it’s a terrible tragedy that happened. We all agree. Nobody likes to read about a young person dying in a tragic accident like that. But again,” Leising continued, “there are rules that have to be followed, and the ticket simply wasn’t written correctly, and that’s what the law says. That’s how we uphold the integrity of the system, in my opinion.”

Elisa Marie Homen and her soon-to-be husband Vincent Vento, along with their son Vincent Vento Jr., who turned 4 in February, lived with Vento’s mother, Deborah Prince. Vento didn’t want to be in court today, she said.

“I don’t think this was right, what happened here today,” Prince said. “I’m speaking for the family. Nobody even attempted to apologize, to say they were sorry. No remorse, no nothing. We got nothing.” She said that whatever the case outcome may be, Szmitko “killed someone, OK? She was only 22 years old. I have a 4-year-old grandson at home, keeps looking for Mommy, Mommy, Mommy, Mommy, but yet he gets to walk free and to go drive along like nothing ever happened. He shouldn’t even be driving. He should have been put away.”

Price said Homen’s parents, who live in Massachusetts and couldn’t make it to the hearing, are considering legal action against Szmitko in civil court.

Brian Szmitko homen crash

The January crash scene. Click on the image for larger view. (© FlaglerLive)


Brian Szmitko

Brian Szmitko’s Subaru at the scene of the January crash. Click on the image for larger view. (© FlaglerLive)

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37 Responses for “Case Dismissed: No Penalty Against Brian Szmitko, Responsible for Death of Elisa Homen in Whiteview Wreck”

  1. The Truth says:

    Another case of someone driving carelessly and taking someone’s life without any punishment at all. I don’t believe this young man meant for any of this to happen, but there needs to be consequences for driving recklessly. He was clearly not paying attention and a husband lost his wife and child lost their mother because of it.

    The entire situation is very sad indeed.

    • Ken Dodge says:

      Szmitko was driving carelessly, not recklessly. Words matter. Had Homen not had her wheels turned to the left she would have been catapulted straight ahead and not into the path of the bus.

      • Outsider says:

        Had this dumbass been paying attention she wouldn’t have been catapulted at all.

      • Geezer says:

        When you’re at the wheel of a two-ton+ vehicle, there’s a
        fine line between careless and reckless. In other spheres
        we refer to “careless” as “criminally negligent.”

        Brian Szmitko’s actions directly caused the death of Elisa Marie Homen.

        Sadly, all that was at stake was a paltry $166 and possible suspension.
        But yet if you throw a wad of paper at a driver as he goes by – it’s called a “missile”
        and you face jail time – especially if it leads to an accident.

        Mr. Szmitko drove his Subaru “missile” into an innocent young woman’s car.
        In the end it’s smiles and handshakes all around, no apologies – no nothing.

        And all that you can inject is “she had her wheels turned to the left.”

      • Denise says:

        She had her wheels turned to the left because she was waiting to make a LEFT HAND turn!

      • gmath55 says:

        Stupid comment!

  2. My thoughts says:

    @Ken – so Homen’s loss of life is her own fault? How many times have you turned your wheels in anticipation of crossing traffic lanes, or do you always sit facing forward in case of impact? According to the article, his citation was for careless driving, not reckless.

    Population growth in this area and cases like this will force us to stop using FHP which covers the ENTIRE STATE for traffic investigations. Let them take I-95, I-4, the Turnpike, I-10, I-595, I -75, I-295, the Orlando beltways, etc.

    I think her parents need to take action in civil court.

  3. Patriot76 says:

    If the girl had lived even if his story held up that she stopped quickly and failed to signal, by rules of the road and law he would have been 100% liable by insurance and in most states.. When she died it becomes vehicular manslaughter… But nope, Florida doesn’t want big government telling them how to drive right? Right.

    It’s a shame that FCSO who responded also lacked the training and diligence to fully and faithfully perform their duties, but that’s no surprise there.

    The law as written and practices sends a clear message to drivers – if driving recklessly, make sure your victim dies so only your story stands up in court.

    Again, another killer goes free from Justice and we are left with lawmakers and rule makers who care more about parading their $20 tax cuts per taxpayer and refusing the poor and elderly Medicaid expansion.

    Yep, a state and nation of real winners today. How far we have fallen

    • Ray Thorne says:

      Evidently you didn’t read the article thoroughly enough to see that Florida Highway Patrol investigated the crash and not FCSO.

      • Patriot76 says:

        I stand corrected on that point. For some reason I misread thinking FHP investigated but FCSO responded, but it was all FHP – not entirely surprising though

    • Jadobi says:

      In order to charge a person with vehicular homicide (not manslaughter) it has to be proven that the offender acted recklessly. Almost that their behavior was intentionally horrible. There is a major difference between reckless and careless. I personally have investigated many car crashes, from minor to fatal. Most crashes are due to careless operation of a vehicle, where the at fault party is not paying attention, or driving carelessly. I do not work for FCSO or FHP. And while you throw stones at FCSO, traditionally, Florida Sheriffs Offices do not investigate injury or fatal crashes. Is it time the State changes that rule, I think so, but until then, FHP will investigate them in most Sheriffs jurisdictions. Now my question, how did you come to the conclusion the at fault party operated “recklessly” versus “carelessly?” It’s a sad situation either way. Everyone deserves their day in court and it sucks when someone gets off on a technicality. When it comes to traffic crashes and citations, there are numerous technicalities. I myself am surprised that FHP didn’t catch this one before it went to court. In the long run, the at fault party will be sued along with his insurance. The citation has little bearing on those outcomes.

      • Patriot76 says:

        You are factually correct that in prosecution they label it vehicular homicide not manslaughter, but isn’t that part of the problem? We make no distinction between intent of homicide and reckless action that leads to death (manslaughter) that intent cannot be proven.

        Would this not be a simple language distinction we could make as a society to fix the issue???

        And tailgating IS always reckless not careless… It’s the leading cause of all accidents and follow up crashes, minor bumps, etc..

        If we don’t make these distinctions and continue to hold our noses high on the merit of calling it homicide or nothing than we are failing ourselves and reason itself

  4. Ray Thorne says:

    I do not agree with the finding. The mere “rear ending” the vehicle in front of you is evidentiary of itself to be careless (not paying attention). What certainly cannot be said by a law enforcement officer who did not witness a crash is that a vehicle was “following too closely” because that action was not observed by him or her before the crash. The ticket, even without explanation, should have stood based on the totality of circumstances as surely there was a narrative in the crash report that supports the citation.

  5. what a joke says:

    I’d hate to have to live with that blood on my hands like that driver and officer will have too, then again atleast they get to live, even though their life from here will be eternally flawed..I didn’t know her, but the earth misses her. Flagler county Justice has let us down….again

  6. Gia says:

    How come in Flagler county FL the careless driver of a car is not responsible by causing a rear end accident with the result of killing a person.

  7. If ever there was a case that needs to go Civil this is it. Call Morgan and Morgan or another Attorney of choice.

  8. PeachesMcGee says:

    Regardless of the verdict, this young man will never forget that his actions killed another human being.

  9. Jim WjamjAmes wesjames whim w says:

    This isn’t the old. Testament. Look up the word accident. We don’t need to hang everyone who is “careless”. Because the result is not what you want. Are we not ALL guilty of being careless ? I feel horrible about the death but it was an accident. That’s why we have civil court systems. This is Criminal court. This was not a criminal act. Condu

    • Geezer says:

      If I close my eyes and drive, or text a pithy joke to someone while driving – shouldn’t I
      take responsibility after plowing into you, whilst you sit innocently at a red light?
      Or would that considered an accident and not a criminal act?

      Look up the word “negligence.”

      When does a civil action restore a life?

  10. Jadobi says:

    Here is what I see that caused this citation to be dismissed. Let me start with qualifying my response. I am a veteran law enforcement officer with more than a dozen years of service, and am still active. I have investigated numerous crashes and have put people in prison for a few crashes. A citation is the document used to charge a person with the violation, in this case, careless driving. In order to be charged and adjudicated guilty on that charge, the State (FHP in this case) has to prove careless on the document, which merely listing “careless” is not sufficient. There needs to be a description of what careless means for a defense and a successful prosecution. The rule is that a person (the defendant) cannot defend themselves against “careless driving” they don’t know what act is being described as careless. I hope this clarifies what happened. Essentially it’s a technicality.

    • Patriot76 says:

      A perfect explanation, but I wouldn’t call it just a technicality.. It’s a serious problem with the way the laws are written and wording is used

    • Ray Thorne says:

      The crash report should be sufficient documentation to support the citation as a citation is listed on a crash report. The citation is not a stand alone document in this case. The narrative in the crash report should be all that was needed.
      Now in a case where there is no crash yet a law enforcement officer observes someone driving careless and issues them a citation based on what he or she observed prior to conducting a traffic stop then a narrative should be done on the citation as there is no other supporting documentation and the citation stands alone.

      • Jadobi says:

        The citation is the charging document. If a person is arrested for theft, the SA707 is the charging document. The charge would be listed and a narrative to support the charge follows. The same holds true for a careless citation. The charge of careless should be supplemented by a description of what was careless. Courts require a description of careless in any event, crash or on view violation. I would think the Trooper would know this. Trust me on this.

  11. My thoughts says:

    @Jadobi – Do you want to run for Sheriff or know anyone who does AND IS QUALIFIED?

    • Jadobi says:

      I disagree with the fact a non law enforcement officer can run for a law enforcement officer job. We’ve all seen how that works out. I also don’t feel that the position of Sheriff should be won in a popularity contest.

  12. Patricia says:

    People people what an awful world we live in. It was an accident for God’s sake accident. Pls go check definition of an Accident so you understand the meaning of it. No one wakes up in the morning and means for this to happen. Stopping abruptly in front of you, no blinker when turning left, no brake lights list can go on and on…. we were not there, therefore stop judging and throwing hateful words at this incident. This family is going through a lot as it is and this kid is emotionally deteriorated I can’t even imagine. We all have kids and it can happen to anyone. Taking ones license away for whatever time it is, paying a fine or whatever else you suggesting will not bring a life back, why can we concentrate on helping people move on past this and lifting the family up that lost a loved one instead we sit here and criticize actions of others and judge them very badly. Where are our morals and humanity……it’s a shame how fast we jump into conclusion and even faster to judge. Leave the kid alone he’s a good kind and respectful kid who is raised well and is very sorry over what happened but life must go on and let’s pray for all involved in this accident!!!!!!!!

  13. Anonymous says:

    I sincerely wish them luck with their civil suit.

  14. Lisa says:

    So tell me why do accidents happen??? oh yes wait cause the person is not paying attention cause there on there cell phones or doing whatever it is not see what is in front of them oh and lets not forget about speeding. therefore its okay to have an accident and take someones life and walk away free because it was an accident!!!! he killed my daughter because he was not paying attention!!!!!! that just about sums it up, but that okay because it was just an accident!!!!!!!!!!!!!!! I don’t think so.

    • Jadobi says:

      The whole situation is a sad one and has far reaching effects. The fact of the matter is that neither speeding nor not paying attention are criminal in nature. I can guarantee that each and every person reading this has either sped or not paid attention, whether it’s a mere second or whatever… All while operating a motor vehicle. By Florida State Statute, neither one raises to the level of putting someone in prison. There are other avenues to pursue to hold an at-fault party accountable. To hold hate and anger in your heart will not allow you to heal.

      • Patriot76 says:

        I agree on the factuality of statute, but disagree on the premise and the statistics are evidentiary of the poor behavior driven by lack of deterrence. It is also inconsistent with other law..

        In example, you may be charged with manslaughter if you “carelessly” forget to shut off the gas oven and the explosion claims innocent lives. The second you do so with intent, you are charged with homicide. Or maybe you accidentally drop a hammer from a tall building… Etc

        It should be criminal to operate a motor vehicle in a way that claims a life if determined to be careless or reckless. The intensifiers that would differentiate the two are felony vs misdemeanor type charges. Fault in this case cannot be the only cause for prosecution.. You should be found to have been either carelessly or recklessly driving to be guilty criminally

    • Geezer says:

      You’re making waaaay too much sense!

  15. Ken Dodge says:

    It is policy that any and all accidents involving Flagler District School Buses are investigated by FHP and not FCSO.

  16. what a joke says:

    Patricia you say he’s sorry? Well he sure didn’t apologize to the family. Not even by letter. How do you hit someone that hard at a stop sign? Hard enough to send them 10′. You have to be speeding and not looking at the road. Thats not an accident thats wrecklessness.

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