June 09, 2017

DELRAY BEACH - Relatives of Andre and Vivian Brito, killed in 2016 west of Delray Beach, say they’re “disappointed” that authorities did not criminally charge the driver but instead issued just three traffic violations totaling at most $600 in fines.

A 202-page Palm Beach County sheriff’s report says investigators found in Raymond Joseph Kelly’s vehicle envelopes and vials containing more than 300 tablets of medications. And he showed signs of being under the influence of narcotic painkillers, according to the report.

Kelly had been taken for treatment to Delray Medical Center, the hospital where he worked as a registered nurse, and where he reportedly had finished a shift hours earlier. The report says members of Delray’s medical staff told investigators Kelly told them he had left work and could not remember the crash, “telling them that he fell asleep at some point.”

But by the time sheriff’s investigators arrived, the report said, the badly hurt Kelly already had been administered medication, and because of that, a sheriff’s forensic expert later “could not say with any certainty” if Kelly was impaired at the time of the collision.

“By the time the drug recognition expert got there, he (Kelly) had already been administered fentanyl,” Adam Langino, an attorney for the Brito family, said Thursday. “So there was no way to distinguish perhaps what was being caused by the fentanyl administered by the nurses.”

Fentanyl is an opioid 100 times more powerful than morphine that can be prescribed for severe pain.

“I don’t fault the medical professionals. They have their job to do. I’m not here to second-guess them,” Langino said.

Witnesses told investigators Kelly cut into a right-turn-only lane and ran a red light just before his car slammed into Andre Brito, 41, and Vivian Leal Brito, 39, who lived west of Lake Worth.

Kelly, now 67, of Royal Palm Beach is set to go to Palm Beach County Court on July 22 on charges of failing to use a designated lane, running a red light and careless driving, court records show. The three are non-criminal “moving violations”; a court official said their combined penalty would be up to $596.

The Palm Beach County State Attorney’s Office confirmed Thursday that the sheriff’s office did not submit the report to prosecutors for consideration of any criminal charges.

The crash made orphans of brothers Rafael Brito, then 11, a sixth-grade at Lake Worth Christian School, and Lucas, then 17, who would graduate three months later from Park Vista High School in suburban Boynton Beach.

Langino said relatives asked reporters not contact them. Vivian Brito’s sister did tell The Palm Beach Post last month that the family hopes additional witnesses come forward. And Patricia Silva said Thursday through Langino, “we are disappointed with the decision not to pursue criminal charges and still have questions as to why the defendant was in the state that he was in when he killed Andre and Vivian.”

Langino said that’s a question he’ll pursue if he ends up filing a wrongful death lawsuit.

On Wednesday, both Kelly’s wife, Margarette Fleury, and Douglas Duncan, his attorney, said they had no comment. State records show Kelly’s nursing license is active and shows no discipline, and he continues to work at Delray Medical Center.

According to the sheriff’s report, at about 8 a.m. March 1, 2016, the Britos were driving on Atlantic Avenue near Hagen Ranch Road, west of the Delray Beach city limits, when an SUV barreled through the intersection. Several witnesses told investigators they saw it run the red light in a right-turn-only lane of westbound Atlantic at what one called “a high rate of speed,” and slam into the driver’s side of the Britos’ vehicle as Andre Brito, the driver, turned left onto eastbound Atlantic from Hagen Ranch.

According to the report, found in Kelly’s car were three envelopes containing a total of 111 orange pills labeled Advil; a vial of 86 pills labeled with a name the report redacted; and six bottles containing a total of 123 pills whose names also were blocked out. It did not say if the pills were prescription medications, except to say one of the six vials showed a prescription for Kelly’s wife. The sheriff’s office said it blacked out the pills’ names because of medical privacy rules.

About an hour and 40 minutes after the 8 a.m. crash, the report said, sheriff’s investigator Troy Snelgrove talked to Kelly at the hospital and “could see signs of impairment which consisted of not being able to keep his eyes open, slurred speech, and an estimated pupil size of 2.0 mm which was consistent with the use of a narcotic analgesic.”

But the report said Snelgrove could not determine either if the impairment was from before the crash or had taken hold since he’d been treated at the hospital for his injuries.

The report said Snelgrove did ask Kelly to submit to a blood test, but he said he wanted to wait until his wife arrived “because he did not want to do anything he would ‘regret.’ ” It said members of the hospital staff already had drawn blood at 8:43 a.m., but that workers also had given Kelly some sort of medication; likely the fentanyl Langino described. The report blacked out its identity, again citing a medical privacy exemption.

A request, filed with a judge, for a formal search warrant to collect the blood-test results says the investigator “has good reason to believe” the evidence “is relevant to the commission of a felony” and to proving allegations of DUI manslaughter, DUI with property damage, or vehicular homicide.

The parts of the report that give the specific readings from tests conducted on Kelly were blacked out; the sheriff’s office yet again cited medical privacy rules.

But the report did say Xiaoquin Shan, a senior forensic scientist for the sheriff’s office, referring to Kelly as driver number 1, “could not state with any certainty that D-1 was impaired at the time of the collision. She stated that looking at D-1’s prescription history, his (redacted), and the substances identified in his system, she cannot determine if he was impaired by the medications listed.”

The Britos were Brazilian nationals who later became U.S. citizens along with their children, eldest son Lucas told The Post in May 2016. That morning, Lucas said, Vivian didn’t feel well. Andre, who ran his own tiling outfit, offered to drive her to work.

“When I was told, I cried for literally 30 seconds and then I had to say, ‘What’s the next move?’ ” said Lucas, who would have tattooed onto his middle finger his parents’ initials and the date they died. Lucas continued his schooling and graduated with his class.

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