Driver Won't Be Charged in Death Near UM

By Elaine de Valle

• Coral Gables
• Wed, Apr. 20, 2005

Ashley Kelly was struck and killed by Kristin Arbuckle as she crossed U.S. 1 with Andrea Cinque who was also hit but only suffered minor injuries. Arbuckle was ticketed but won't be charged.

The woman who ran a red light and struck a University of Miami student crossing U.S. 1 near campus last week will not be charged in the death, Coral Gables police said Tuesday. Kristin Arbuckle, however, will be issued a $115.50 traffic ticket and four points on her license for running a red light at the intersection of U.S. 1, also known as South Dixie Highway, and Mariposa Court.

''She simply ran a red light unintentionally,'' said Coral Gables Police Chief Michael Hammerschmidt. ``She just simply didn't see it until the last second and it was too late. When you start talking about charging somebody in somebody's death, there has to be some sort of intent there.''

One witness observed Arbuckle beside the unconscious Kelly, crying and holding her hand.Kelly later died at Jackson Memorial Hospital. Cinque was treated at Doctors Hospital for minor injuries.

Arbuckle, the niece of personal injury lawyer Dean Colson, chairman of UM's board of trustees, was not injured.

''This is what would be classified as a tragic fatal accident that this young lady is going to have to live with the rest of her life,'' Hammerschmidt said.

Kelly's family, who lives in Naples, were contacted by Coral Gables police Tuesday of the decision that criminal charges would not be placed. The family declined to comment.

Investigators say Arbuckle was driving between 35 and 40 mph, within the posted speed limit of 40 mph. There was no indication Arbuckle was driving aggressively or using her cellphone at the time of the accident. In addition, the chief said, Arbuckle was not intoxicated. Arbuckle was given a roadside sobriety test at the scene.

Hammerschmidt said he fielded calls from concerned residents after the ticket was issued because of Arbuckle's relation to Colson. But, the chief said, Arbuckle, 24, received no special treatment. ''I told the officers to do it straight up,'' Hammerschmidt said. ' `You let me worry about who is who.' '' Hammerschmidt added his officers presented their evidence to the Miami-Dade state attorney's office and consulted with prosecutors before making a decision.

Ed Griffith, spokesman for the state attorney's office, said that while the investigation is ongoing, ``preliminary factors indicate it was an accidental traffic death as opposed to a criminal death.''

Robert Reiff, a Miami-Dade defense attorney who specializes in cases involving driving under the influence and has written a book on the subject, said that from what he knows of the case, police could not charge Arbuckle with any criminal charge, such as traffic homicide. ''They would have to show willful and wanton disregard as far as her driving pattern,'' Reiff said Tuesday. ``There was no allegation of speeding, of intoxication or drugs, of weaving in and out of traffic or anything like that.''

Since the accident, Arbuckle has cooperated with the investigation, according to Officer Martin Barros. However, she has not given a statement. Meanwhile, police have asked Miami-Dade Transit officials to increase the time pedestrians have to cross U.S. 1 at Mariposa Court. ''Our investigation revealed that the cycling of the light takes a total of 22 seconds,'' Hammerschmidt said. ``We have asked them to increase that cycling.'' He also supports efforts to have a pedestrian bridge built over the busy highway -- but only if it is accompanied by other measures. ``What history has shown is that in order to make those work, you also have to build in barriers to prevent people from crossing the street for some distance on each side of that so that it forces them to walk up and over it.''