A Keizer home on Trail Avenue that Andrew Modine is alleged to have driven into on Jan. 22, 2022. (KEIZERTIMES/Joey Cappelletti)
The Modine brothers, Andrew and Thomas, were drinking at The Shack Bar and Grill in Salem on a September night in 2015.
The brothers left the bar around 8 p.m. and headed for Thomas’s house, according to police records.
Andrew, who was driving, arrived at the house and went inside to speak with Thomas’s fiancé, according to police records. The two chatted for several minutes before Andrew realized Thomas was missing.
A half a block away, Thomas was lying on the road, unconscious. He was found later that night by police and transported to Salem Hospital to be treated for a severe traumatic brain injury.
Six days later, Thomas Modine, 32, died as a result of his injuries.
Andrew Modine is now in the Marion County jail, awaiting trial on charges of two counts of first-degree manslaughter, second-degree assault, reckless endangerment, reckless driving, driving under the influence of intoxicants, driving while criminally suspended, second-degree criminal mischief and a probation violation.
He is accused of being drunk and driving through the side of a Keizer home on Jan. 22, 2022. His blood alcohol content at the time of the accident, according to a blood draw done later at Salem Hospital, was .24 – three times the legal limit. The crash killed Moira Hughes, 67, and George Heitz, 63, who were in bed at the time of the incident.
In 2015, following the death of his brother, Modine was charged with criminally negligent homicide, driving under the influence of intoxicants and failure to perform duties of driver to injured persons. Under the most serious charge, Modine faced up to 10 years in prison.
Instead, he was allowed to go free, sentenced to five years of supervised probation that records show lasted only two and a half years.
Prosecutors say they let Modine avoid prison in the 2015 case because there were “unique factual and legal challenges” that could have resulted in his acquittal.
“If Mr. Modine had proceeded to trial and been acquitted he would have received no punishment. It is certainly true that if Mr. Modine had gone to trial and been convicted, he might have still been in custody,” said Katie Suver, a Marion County deputy district attorney.
A review of records shows, however, that they never invoked a key provision of that plea deal – Modine would go to prison if caught drinking or otherwise violating terms of the deal.
Interviews and records established that:
*Prosecutors struck a deal with Modine, fearing a jury wouldn’t convict him for the death of his brother.
*A year after his conviction, Modine admitted to drinking and smoking marijuana at a family event. That violated the plea deal in a way that was to trigger a 40-month prison sentence. Instead, records show, he was only fined $25.
*Probation records indicate that Modine hadn’t been evaluated for alcohol-use since July 2019 and hadn’t spoken with his probation officer since October 2019.
“The job of a prosecutor is often an exercise in disappointment. There are cases everyday that cause us to wish we could do more or do better,” said Marion County District Attorney Paige Clarkson in an email. “But we must follow the law and our obligation to prove every element of every charge is often frustrated by a lack of evidence. The 2015 Modine case was one of those circumstances.”
Modine’s history of DUIs dates back to 1999, when he was first arrested for driving under the influence of intoxicants at age 18. A year later, he received his second DUI. From 1999 to 2009, Modine was also found guilty of five felonies.
“There is an extensive history of alcohol-use and there has not been a long period where that has not been an issue in his life,” Gillian Fischer, then a Marion County deputy district attorney, said at a 2017 court hearing.
For a six-year period between 2009 and 2015, Modine’s record was clean. Then, came the accident that led to the death of his brother.
“Hi mom I’m intoxicated and being a bad influence i’ll you at the house at about 8:15,” Andrew texted his mother at 7:47 p.m. on Sept. 5, according to a probable cause statement from Keizer police.
The brothers left the bar in a 1950s Chevrolet pickup truck and headed towards Thomas’s house in Keizer, according to the police affidavit.
As they approached, Andrew did something that he told police his father would often do in the vehicle – turn without breaking to allow the truck to coast to the final destination. Crash reconstruction would later show that Thomas fell from the truck during the turn, tumbling along the pavement and suffering what proved to be fatal injuries.
Andrew arrived at the house and spoke to Thomas’s fiancé for several minutes before realizing Thomas was missing, according to the police affidavit. He only discovered what had happened after police and medics arrived, which records show was at 8:33 p.m.
Andrew didn’t speak to police until the next day, making it unclear what his blood alcohol content was at the time of the accident. He told Keizer police during interviews on Sept. 6 and 9 that he had three beers at the bar.
“It looks like I, yeah. I definitely had more alcohol than I remember. And that I was too intoxicated to be in charge of my brother’s safety,” Andrew would later say to police, according to records.
Modine’s lawyer in the current case, Marc Gunn, didn’t respond to requests for comment.
Suver, who worked on the 2015 case with Fischer, said the 2015 case was more complicated than the probable cause statement initially indicated.
The first issue for prosecutors was proving that Andrew was driving under the influence of alcohol. According to Suver, there was evidence Andrew was intoxicated from alcohol but no DUII investigation was conducted “due to the fact Andrew was not identified as the driver until long after medics and police treated Thomas in the street.”
Additionally, while he had a valid Oregon license, Suver said Andrew was vision impaired on his right side.
The second issue concerned whether Andrew’s driving was the reason Thomas fell from the vehicle. According to Suver, the 1950s pickup truck had no power steering and a passenger door that didn’t properly latch. Thomas was not wearing a seatbelt and was “extremely intoxicated” at the time of the accident, according to Suver.
“The main issue in the criminal case turned on causation – and whether the defendant’s driving caused his brother’s death or whether his brother just fell out of a vehicle,” said Suver.
After a 10-month investigation, Modine was arrested and charged with criminally negligent homicide, driving under the influence of intoxicants and failure to perform duties of driver to injured persons.
A month later, prosecutors offered a deal – plead guilty to all counts and serve three years in prison followed by three years probation. Modine rejected the offer.
Because of the more recent charges, Keizer police said they were directed by Clarkson’s office not to comment on the 2015 case – making certain investigation details unclear.
“Unfortunately, there are criminal cases where the evidence is overwhelming and criminal cases where the evidence is scant,” Suver said.
Prosecutors went back to Modine with a new offer in late 2016 – plead guilty to two of the charges and avoid a prison sentence.
Suver said prosecutors met with Deborah Daellenback, mother of Thomas and Andrew. She “was opposed to her son Andrew serving jail time,” Suver said.
“Ultimately, any plea offer made in a criminal case is an evaluation of the strength of the state’s evidence, the likelihood of conviction at trial, the defendant’s willingness to take accountability, and the laws governing sentencing,” Suver said.
She added that the case “turned on whether the defendant acted with criminal negligence.”
Criminal negligence, according to Oregon law, occurs when someone is unaware that their conduct involves a “substantial and unjustifiable risk” that is a “gross deviation” from what a reasonable person would do.
Under Oregon’s crime grid, criminally negligent homicide, when related to a DUI, carries a sentence between 61 to 65 months. The charge is also a Class B felony, which carries a maximum of 10 years in prison under Oregon Sentencing Guidelines.
“Had Mr. Modine proceeded to trial and been convicted of criminally negligent homicide, the court could have sentenced him to probation or sentenced him up to 120 months in prison. Both of these outcomes were unlikely,” Suver said.
With the most serious charge dropped, Modine still faced up to 40 months in prison.
But under terms of the plea, he wasn’t going to prison. Prosecutors instead agreed to 60 months probation, with a stipulation that any probation violation would send Modine to prison for 40 months.
On April 20, 2017, Modine, his lawyer and prosecutors went before Marion County Circuit Court Judge Tracy Prall to present the plea deal during a sentencing hearing.
“It would be fair to say that any violations based on intoxicants or use of drugs would likely be a recommendation of revocation by the state,” said Fischer.
Prall emphasized this condition to Modine, saying “something you just know, I cannot drink and drive or use controlled substances. I cannot or I go to prison. That’s the message you need to have here.”
Modine was also given a chance to speak during the hearing.
“I would just like to reiterate that, I feel like I’ve taken a pretty fair amount of responsibility for the situation that happened,” Modine said. “Also, I understand that there had to be a recommendation because of my past, I’ve done a lot to put that behind me. To have an incident like this happen, to bring me back into a situation like this, is tough.”
At the April 20, 2017 hearing, Prall also said that it was “real important” that Modine attend a victim impact panel. Court records indicate that Modine did not attend. It was his first of several violations.
Modine completed an alcohol treatment program in December 2017. Five months later, he admitted to his probation officer that he had smoked marijuana and drank “to the point of intoxication” at a family barbecue.
Prosecutors requested a judge revoke Modine’s probation, which could have put him in prison.
Modine appeared before Prall on Sept. 4, 2018, with the possibility of a 40 month sentence for violating his probation agreement.
Fischer recommended Modine get a second chance.
“We are agreeing to violate and continue the defendant’s probation in both counts, two and three, however we are asking in both counts the defendant’s probation be modified to zero tolerance for the use of intoxicants,” Fischer said at the hearing.
Suver said that judges rarely revoke probation for non-criminal behavior.
“Voters have made it clear through various laws and ballot measures that Oregonian prefer a different approach outside the criminal justice system to the use of drugs and alcohol,” Suver said. “While the judge had the authority to revoke Mr. Modine’s probation for a non-criminal violation, the judge exercised her discretion not to do so.”
Given that second chance, records show, Modine remained sober, moved with his family back to Keizer in early 2019 and he started his own construction business.
From February to July of 2019, according to probation records, Modine met each month with his Marion County probation officer. According to the Marion County Sheriff’s office, these visits were “to monitor compliance with court orders, conduct needs assessments, work on skill development, engage in cognitive behavioral therapy,” and to address any other concerns.
Probation records indicate that on July 1, 2019, after an in-office meeting, Modine’s case plan was updated. The July meeting was the last time Modine would meet with his officer.
“Risk assessments administered to Modine categorized him as a low risk to reoffend. Consistent with our practices, Modine was transitioned from a field caseload to the Limited Supervision Unit which does not require monthly check-ins with a probation officer,” Sgt. Jeremy Landers, spokesperson for the sheriff’s office, wrote in an email.
A probation officer recounted an Oct. 21, 2019, phone conversation with Modine. He reported that Modine “has had a rough couple months but things may be getting better.” The probation officer also told Modine to complete his required 80 hours of community service, which Modine had completed none of.
Records show that with 30 months remaining in his probation, that call was the last time Modine spoke to his probation officer.
On Jan. 16, 2020, Modine was sent a non-compliance letter for not completing his community service. The letter, according to records, said to contact the probation officer immediately. Records show no such contact.
Failure to complete community service was a violation of the probation and under the agreement, all violations were to be referred to a judge. This never occurred.
Modine was allegedly driving eastbound in Keizer early on the morning of Jan. 22, when he swerved into a power pole and then drove through the side of a house, pinning the couple in their bed.
As they lay trapped, Modine stayed in the driver’s seat. Arriving police and medics found the truck still in gear with Modine “revving the engine causing the rear tires to spin” in what appeared “to be an attempt to drive further into the house,” according to a police affidavit.
In a statement following the incident, a neighbor reported that when she initially approached the crash, Modine was “singing, and headbanging with his music blaring.”
Hughes was declared deceased at the scene. Heitz was initially paralyzed from the waist down and died six days later in the hospital.
Modine remains in custody at Marion County Correctional Facility and was denied bail.
This article was originally published in the Keizertimes and is reprinted with permission. Contact reporter Joey Cappelletti at [email protected] or 616-610-3093.
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