No criminal charges will be filed against the driver who struck and killed an Elgin motorcyclist in West Dundee last summer because the case does not meet the criteria of breaking any current law, Kane County State’s Attorney Jamie Mosser said.
The West Dundee Police Department turned over the results of its months-long investigation into the August 2023 death of Roque “Rocky” Lopez to prosecutors this month. Mosser said the inability to find any applicable charges is frustrating, and points out a problem in the law that she vows to change.
“My job is trying to explain something I don’t agree with,” Mosser said. “It’s incredibly traumatic to see what happens to these individuals (when) I have to tell them they won’t see any justice.”
Lopez, well-known in some parts of Elgin because of his distinctive face tattoos, budding acting career and successful tortilla business, was on his motorcycle when he was struck by a driver making a turn at the intersection of Miller and Binnie roads in West Dundee.
While the driver told police she had been drinking earlier in the evening, toxicology reports showed there were no alcohol or drugs in her system at the time of the crash, Mosser said.
“There was nothing we could charge under the DUI statute,” she said.
Prosecutors then looked at whether the woman, a 61-year-old Dundee Township resident, was doing something that distracted her while driving, but could find no evidence to support that charge either, she said.
They also considered a reckless homicide charge, but the statute “is written very poorly,” Mosser said. “It’s something we need to change in Illinois.”
To file a reckless homicide charge, prosecutors must prove a person acted with “a conscious disregard of the safety of others,” Mosser said. “The typical cases we’ve seen are people going at incredibly excessive speeds in a residential area.
“In this case, this individual turned left in front of Mr. Lopez and by the time he got to the intersection, he crashed into the back of her car,” she said. Lopez was driving about 10 mph higher than the speed limit, she said.
“(The woman’s) statement to the police was that she didn’t see him prior to turning. We don’t have any proof to show she disregarded anyone’s safety,” Mosser said.
The fact that Lopez struck her vehicle at the back supports her statement that she couldn’t see him, she said.
“(She) was not reckless or (acting with) conscious disregard of others, per case law,” Mosser said. “There was nothing that rose to the level of a misdemeanor or a felony. … (This) is more usual than people think.”
She was charged with a traffic violation by West Dundee police, she said.
There was a similar fatal motorcycle/car crash on Route 38 last summer where the same situation was true, she said. The driver said his brakes failed, resulting in him striking the motorcyclist, and prosecutors could not seek any charge beyond a traffic violation despite the loss of life, she said.
In her opinion, the reckless homicide law is too narrow and doesn’t take into account when a death occurs, she said. Other states have laws that give prosecutors more leeway when deciding if a charge of reckless homicide is appropriate in a case, she said.
Mosser is working with A.B.A.T.E. of Illinois, a motorcycle right advocacy group, which is willing to get behind the legislation Mosser proposes, she said. She’s working on the wording and hopes to have something ready by the next legislative session.
While Mosser knows there might be some pushback from people who argue a fatal crash is sometimes just a tragic accident, she is moving ahead.
“We may see some opposition within the current makeup of our legislation,” she said. “I would hope if they heard stories from Mrs. Lopez and the (spouses) of others who have been killed, it would change their minds.
“I do believe that driving is a privilege, not a right,” she said. “We have to be overconscious when we are driving. We are in this dangerous weapon, and we should be held to a higher standard when a death occurs.”
Lopez’s wife, Ravin, has filed a civil suit against the driver, and while she and her family understand why criminal charges aren’t being filed, it’s hard to accept, she said.
“We’re all devastated. There’s no justice for my husband,” Lopez said. “It’s so hard for me to understand the laws, I guess. It just doesn’t make sense to me.”
Gloria Casas is a freelance reporter for The Courier-News.
