Local

Judge won't yet dismiss traffic violation against garbage man accused of running over man, dog

ORLANDO, Fla. — An Orange County judge has denied a request to dismiss a traffic violation filed against a garbage truck driver accused of backing over and killing a Lake Nona man and his dog.

Earlier this month, defense attorneys filed the motion after no witnesses could put the driver behind the wheel.

The Florida Highway Patrol said it requested FCC Environmental, the county contractor, to turn over records to prove who was driving, but the company refuses to do so.

WFTV legal analyst Bill Sheaffer said that by law, the company doesn't have to admit who was driving, because this is not a criminal case or a civil lawsuit, meaning the defendant could walk away without a penalty, depending on the judge's decision.

"I don't want another family to deal with this. If there's anything I can do, I'll try," Heidi Lear, the victim's daughter, told Channel 9 in August.

Jim Lear and his dog, Nicki, died five days before Christimas when an FCC environmental garbage truck backed over them steps from their Lake Nona home.

Heidi Lear said she wants laws to be changed after troopers cited the alleged driver, Walner Jean-Phillipe, 43, with a civil, not a criminal violation. It carries a penalty of a six-month loss of license.

New defense arguments in the last two weeks are fighting that after a witness placed Jean-Philippe near the truck, not behind the wheel.

Troopers said they requested FCC Environmental's records for the truck that hit Jim Lear, but the county contractor refused to turn them over.

"This would be a circumstantial evidence case," Sheaffer said. "It has to exclude every reasonable hypotheses of innocence."

The company doesn't have to provide the records, because the same rules of discovery don't apply in this type of non-criminal case, he said.

Sheaffer said he predicts this could be an example of justice delayed -- until the end of a civil suit.

"Because then you can compel discovery. You can even force the suspect to testify to help you prove your case," he said.

Lear's family has already filed a wrongful death civil suit.

The county and the contractor haven't yet provided Channel 9 statements for this story.

Jean-Phillipe's citation hearing is scheduled for Nov. 13.