No fine for Port Orange officer who police say ran over, killed man

Andrew McIlvain

By Frank Fernandez
Published: Thursday, June 25, 2015 at 5:39 p.m.
Last Modified: Friday, June 26, 2015 at 9:31 a.m.
An internal affairs investigation is clear when it states that Port Orange police Officer Silvio Portillo was driving the patrol car that struck and killed a man riding a scooter last year. But the Florida Highway Patrol could not legally prove that fact during a hearing Thursday, and a judge acquitted the officer of careless driving.
Portillo was driving 65 mph, 15 mph over the posted speed, on Dunlawton Avenue on his way to a “non-priority” noise complaint Dec. 21 when he struck Andrew McIlvain, who was riding a scooter at Village Trail, according to police investigations. McIlvain died on Jan. 4. Portillo said he was looking at his laptop to find the call’s address, looked up and saw McIlvain.
Portillo did not appear for the hearing before County Judge Angela Dempsey at the Courthouse Annex in Daytona Beach. Portillo’s attorney Martin White argued successfully that the police officer had not been identified as the driver of the squad car that struck McIlvain. White also argued that the troopers had not legally established venue, meaning that the crash had occurred in Volusia County.
“Your honor, we move for a judgment of acquittal at this junction,” White said. “There’s been no identification that my client was driving behind the wheel. The state did not establish venue.”
After the hearing, Port Orange police Chief Gerald Monahan cited pending litigation and referred questions, including whether he agreed that Portillo had been driving the police car, to Assistant City Attorney Matthew Jones.
Jones did not answer whether the department agreed that Portillo was the driver.

“Officer Portillo is afforded the same rights and due process as any other defendant charged with a traffic infraction,” Jones wrote in an email. “The Port Orange Police Department played no part in the prosecution or defense of Officer Portillo related to the December 21, 2014 incident.”

Portillo was suspended without pay by the Port Orange Police Department for 10 days and ordered to attend an emergency vehicle operation course at Daytona State College.

Former FHP Trooper Robert Asbill interviewed Portillo after the accident, but Asbill did not attend the hearing. The two troopers that were present did not speak to Portillo, because they had different roles in the investigation. A report prepared by FHP Trooper Kurt Glaenzer lists Portillo as the driver of the patrol car.

“Because the defendant is not required to file an affidavit there is no evidence on the record to identify my client as the operator of that vehicle,” White said.

Portillo was not at Thursday’s hearing because his lawyer was there to represent him.

The judge ruled on the careless driving ticket which carried a $166 fine.

“Judgment of acquittal is granted,” Dempsey said.

McIlvain’s elderly mother, Maxine, sat silently and shook her head after the judge ruled. Her civil attorney Michael Politis turned and quietly spoke to her. Politis declined to allow Maxine to be interviewed after the hearing but said she was bothered that Portillo was not present.

“She was upset because he wasn’t here and she was upset that, for whatever reason, even though he caused the death of her son, why the court can’t find him guilty of a careless driving citation,” Politis said.

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8 thoughts on “No fine for Port Orange officer who police say ran over, killed man

  • June 27, 2015 at 7:39 am

    What a shame! Playing technicalities is ridiculous in a case like this. Can’t prove he was driving the car? I hope the family sues the Judge for negligence as well as the city. Absolutely absurd. Above the law for sure.

  • June 27, 2015 at 8:30 am

    I say the fix was in. These state troopers were not rookies — they knew what they were doing . As part of their plan they must have also told P.O officer Portillo not to show up in the court so the judge could not ask him the question if he was driving.
    Now who investigate them for this shameful ploy. And they wonder why there are increasing numbers of people that hate cops. Disgusting

  • June 27, 2015 at 9:47 am

    Any “wrongful death case” that involves city, county or state employee one has to look “out of state” for a law firm.
    You ask why? The tenacles of “FLORIDA LEAGUE OF CITIES” run through these agencies and indirectly to local “law firms” and “judiciary”.
    FLORIDA LEAGUE OF CITIES should be dismantled…who would take the challenge?

    • June 27, 2015 at 3:20 pm

      You are correct! They are tied in with the ICMA/FCCMA and the Chamber of Commerce also. They are tied in with all of the special interest politics and business interests around here. They masquerade as the vicar of the publi’s interestc but that is as far from the truth as possible. They are responsible for all of the recycled FCCMA MIT administrators who do not even apply for their high paying positions but some city manager/life saver summons them here with the expectation that they dutifully serve that special interest illuminati that is in synch with the local special interest politics and business. The city needs council people that will:
      1. Put forth an RFP for management search criteria that excludes anyone that is a member of the ICMA/FCCMA.
      2. Stop hiring any managers with any membership or affiliation in the ICMA/FCCMA.
      3. As a part of their employment, require all existing managers that are ICMA members, to drop out of membership. (This should not be unreasonable because any bargaining unit employees that are currently promoted into management are not allowed to be in the bargaining unit)
      4. The city government should cancel its membership and affiliation with the Chamber of Commerce and stop wasting thousands of taxpayer dollars hiring Joe Coury to come in and try to indoctrinate employees into the ICMA mentality and coach upper management on how to coerce and get rid of independent thinkers.
      5.The council should revamp the city charter to split administrative power equally between the council and the city manager. The city council should be held to higher intellectual standards and should spend considerably more time performing their duties. They should double the salary and incluse life insurance for the council people to reward them for meeting this criteria. They should have round robbin annual rotation where each council member should be watchdogs with each of the departments and monitor their management as well as stay in touch with staff to ensure transparent operations.
      The city needs a whole new paradigm that ensures transparency, obliterates special interest politics & business, and recognizes & rewards value. Do we have any elected officials with the cojones and intelligence to do this? If not, we need to identify potential new leaders in the future and vote them in.

  • June 27, 2015 at 7:19 pm

    The city will still pay out a HUGE sum in the civil case. Start planning now.

      • June 28, 2015 at 6:37 pm

        The despicable thing is that the city council, the city manager, and the city attorney will spend tons on legal fees to try to skate on this. This is very simple. The negligent Port Orange police officer snuffed out an innocent life and should be held responsible but has got away with the whitewash. The city should now pay this person’s survivors millions of dollars for the irresponsible loss of his life. The city should not lawyer up but should pay without question. How does the mayor, our councilmen, the city manager, the city attorney, and that irresponsible police officer sleep at night. Forget about paying a bunch of legal fees for defenses. Take responsibility and pay this man’s estate.

        • June 29, 2015 at 12:36 pm

          The City Attorney will be compelled to hire outside counsel for something of this nature. Way beyond her pay grade and capabilities.


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