After a hit-and-run motorist swerved onto the shoulder and crushed Robert DeMaio’s bicycle and him almost with it, DeMaio wished for two things: for his injuries to heal and to see justice done.
He’s had his best luck with the injuries.
DeMaio, a 45-year-old competitive cyclist, was riding alone on the shoulder of Aldine Drive in San Diego about 10 a.m. Saturday, Sept. 7, 2013. It was a beautiful day, and traffic was light.
Then, the sunshine went out of his morning.
Suddenly, a car slammed into him. It crushed the bike and threw DeMaio onto its hood and then against the windshield, which shattered on impact. He rolled off and slid along the shoulder, leaving skin along the ground like a tire skid mark. His helmet was cracked in three places.
“(When the car hit me), it felt like being struck by baseball bats. I hit the ground, striking my head, and felt the skin being scrubbed off my back.”
He had taken a bareback ride down a sandpaper slide.
The superbly conditioned DeMaio cleared his head instantly, looked up and saw the car that hit him speeding away. He identified it as a gray or dark blue Subaru Hatchback Impreza WRX wagon, exactly the model he once owned.
“Follow that car,” he screamed, but no one did.
Lying among the rocks and grime, he thought: They know they hit me, and are leaving me for dead on the side of the road, and they’re going to get away with it.
Three other people witnessed the crime, and two of them recognized the car as a Subaru. None got a license number.
Witness Kimberly Goins Anderson told police, “I didn’t see who was driving the car. It was a dark blue Subaru that hit him. I saw the car swerve and hit the guy on the bike. After hitting him, the guy in the car swerved back onto the road and drove off.”
Police responded, took statements and carefully examined the site. Officers found a piece of plastic that looked to be from a car bumper. Printed on it were the words, “Subaru. Made in Japan.” It was taken into evidence.
DeMaio was ambulanced to Scripps Mercy Hospital, where he spent seven hours being treated for road rash over much of his back. (“Road rash” is a clinical term for being skinned alive.) He also was diagnosed with a concussion.
Motorists along San Diego streets, often on a weekend, might notice that bicyclists seem angry when cars come close. Cyclists say their attitude is disgust at being bullied, ignored and intimidated by machines that move fast, weigh a ton and can be driven by people who don’t watch the road.
The win-loss record on collisions is that autos are undefeated.
Robert DeMaio (no relation to politician Carl) and his wife, Kristen, are parents of two young kids. He’s a straight-ahead guy who gets riled by injustice, and when injustice gets personal, well, he’s a bloodhound on scent.
The next morning, Sunday, Sept. 8, DeMaio dragged his sore and bandaged body out of bed at 7:30 and started his own search for the driver who would have left him dying in the dirt like roadkill.
His search didn’t take long. At a single-family residence on Euclid Avenue, two blocks from his home, he saw a damaged dark blue Subaru Impreza hatchback in a driveway. He called police and started taking cellphone photos of the vehicle.
Soon, a man came out of the house. It was Bahadar Khunkhun, 36, who lived in the house with roommates Logan Banner, 32, and Brandon Oyos, 30. DeMaio said Khunkhun also started taking pictures of the vehicle.
When police arrived, an officer had brought along the plastic piece picked up at the scene. He placed it against the bumper. It fit. The police report noted a dented hood and the shattered area of the windshield.
Bandaged and aching, DeMaio looked at the damage and thought: “My body did that!”
DeMaio was told by police who interrogated Khunkhun that Banner, the car’s owner, was out of town and had left the Subaru keys at the residence. Khunkhun told police he had not seen Oyos since Sept. 1. They worked at the same place, but on different shifts. He believed Oyos had gone to Tijuana over the weekend.
Khunkhun said he had been out with friends the previous morning, Saturday, and had not driven the Subaru that day. He said he saw the car in the driveway about 8 p.m. Saturday evening when he returned home. He said he drove the Subaru to the grocery store that Sunday morning, before DeMaio arrived.
In the presence of police, Khunkhun phoned Banner to tell him that his car was damaged and assumed to have been used in a hit-and-run. Banner told police in the same conversation that he had left on Friday, Sept. 6, to travel to Colorado.
The police report says Banner stated he had exchanged vehicles with his friend, Brandon Oyos.
Police ordered the Subaru impounded Sunday morning. DeMaio said before the cops left, one turned to him, grinning, and said, “(Solving) this is going to be easy.” DeMaio said a patrolwoman on the scene told him the same thing.
Later, Oyos said in a statement to Banner’s insurance company that he had traded cars with Banner, who presumably wanted to use Oyos’ vehicle to transport two dirt bikes to Colorado. Oyos said he then drove the Subaru to work on Friday evening, Sept. 6, and returned home about midnight.
Oyos said the keys were left in plain sight on a table, and that he and Khunkhun were home alone that night. He said when he left for Tijuana on Saturday at 10 a.m., the car was gone. He didn’t return until Monday.
An item of background: Oyos pleaded guilty in 2010 to driving under the influence.
DeMaio went home after police impounded the Subaru, a little lighter of heart. Justice was on the verge of happening, he thought. The cops on the scene obviously thought solving the crime was a “gimme.” Maybe, he hoped, the message will go out that cyclists will be protected.
About a week after the hit-and-run, DeMaio learned the Subaru would be released from impound because there was no justification to hold it. He wondered why.
He talked to John Labo, the investigating officer. “Labo said the investigation had been dropped. This was no longer a criminal matter. It would be up to me to pursue it in civil court. He said there was no cause to hold the vehicle because neither of the two roommates had confessed to being the driver. I was incredulous that they were going to let it go at that.
“I called him back, imploring him to continue the investigation, and I didn’t want to say it, but I was frustrated that I had found the car for them. I had done the work. All they had to do was figure out who was behind the wheel. The hard part was already done. This should be cut-and-dried.
“Labo several times pointed to his belief that I didn’t sustain serious injuries. That seemed to justify in his mind not going forward. He also said he had not submitted the case to the (district attorney’s) office.”
The bills DeMaio has been left with pile insult atop injury. His part of the hospital bill for his outpatient care on Sept. 7 is $2,722. He had to pay $1,726 for the ambulance. Additionally, he lost about $3,000 income from his job as a sales rep.
DeMaio says he has suffered from depression and short-term memory loss, and is diagnosed with post-concussive syndrome.
I left repeated phone messages for all three roommates, and none was returned. I contacted the lawyers for all three. Oyos’ attorney declined to allow his client to be interviewed. The other two lawyers didn’t return multiple messages.
DeMaio has sued all three roommates and Banner’s auto insurer, USAA. The insurance company responded to DeMaio’s attorney, Mike Bomberger, by writing: “Our insured vehicle has been determined to be stolen. A theft report was made with the San Diego Police Department, and our insured was out of town at the time. The driver is unknown.”
Nine days after the hit-and-run, and a few days after the Subaru was returned to Banner, he filed a stolen car report dating to Sept. 7 and accused “a roommate” of being the thief. The document said Banner wanted a report “for insurance purposes.”
Bomberger said, “I’m a cyclist myself, and when this goes to trial, I believe we’ll find out who was driving that car and identify a cowardly hit-and-run driver who thinks he’s gotten away with it.”
A hit-and-run crime with bodily injury can be prosecuted as a misdemeanor or felony. The district attorney makes that decision after being given the facts by police. Maximum punishment is a fine of $10,000; also, possible imprisonment for one year for a misdemeanor and four years for a felony.
I telephoned officer Labo and requested an interview. He said I would have to talk to police-department media relations. But, I pointed out, he, Labo, was the one with the information.
I was never given access to Labo. Instead, Lt. Kevin Mayer, head of media relations, emailed a response: “This type of crime is a misdemeanor … a citizen’s arrest is required if the crime did not occur in the officer’s presence. Since there was nobody who could identify a suspect, an arrest was not possible. … Any number of people could have been driving. … The investigation was thorough. … All leads were exhausted.”
In an aside, Mayer wrote, “How do we determine (which roommate) did it? Was it a roommate or was somebody else given access to the car?”
Upon hearing Mayer’s words, a flabbergasted DeMaio said, “Did he actually say that? He assumes I was not seriously injured, but they never talked to my doctor, and Labo said they never took it to the DA. But, forget about me. The public should be worried that a criminal was willing to smash into a helpless cyclist and then run away, leaving the victim to maybe die. And that guy is still out there, capable of doing it again. Man, this is scary.”
Disillusionment can build gradually, like the drip of a faucet, or it can cascade in a flood.
The latter would describe Robert DeMaio’s disillusionment with the San Diego Police Department.
Fred Dickey’s home page is www.freddickey.net
His email is [email protected]