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.