KINGSTON — A Kitsap County Sheriff’s investigator found the driver of a North Kitsap Fire & Rescue fire engine “failed to give right of way” to the driver of a Yamaha scooter who was killed July 4, and  is recommending the driver of the engine be cited for failure to “keep right except when passing, etc.”

The 303-page investigation report was turned over to the Kitsap County Prosecutor’s Office in late October. A charging decision had not been made as of Dec. 23.

The fire engine was approximately 3.6 feet in the oncoming lane — northbound Miller Bay Road — when Jason Foster’s 2007 Yamaha YP400 scooter crashed into the front left of the engine, according to the investigation report. The fire engine was waiting to turn left onto West Kingston Road at the intersection when the crash occurred, according to the investigation report.

Foster, 48, of Kingston, was declared dead at the scene.

At the time of the crash, the traffic signal was a flashing yellow turn arrow and the fire engine was required to yield, according to the investigation report. Foster had a solid yellow light; a vehicle can legally enter an intersection on a solid yellow light, even if the light turns red while the vehicle is in the intersection, according to the investigation report.

“Based on my investigation, the fire engine was not legally standing and failed to give right of way to [Foster] by being left of the center line by approximately 3.6 feet,” the traffic investigator wrote.

The driver of the fire engine was with the department for about two years. The driver passed all emergency driving courses required in order to operate the equipment he uses, according to the investigation. He is not being identified because no charge had been filed as of deadline.

NKF&R Fire Chief Dan Smith said on Dec. 23 the firefighter had returned to duty but was shaken up by the fatal collision and chose to resign “a couple of months ago.”

Smith said the department took the fatal collision hard.

“With any accident, this one in particular, the feeling is more on a personal level,” Smith said. “The tragedy … I really feel for that family, particularly this time of year.”

Foster was wearing a helmet at the time of the crash. According to the investigation, however, the helmet came off at some point during the collision. Foster was thrown from the scooter and came to rest 47.26 feet from the fire engine.

The recommended charge is a traffic infraction, unless there are other factors, such as recklessness or impairment, according to Trooper Russ Winger, spokesman for Washington State Patrol spokesman. Charges for such an infraction can be “bumped up” if it is determined there were other factors, he said.

Non-active THC

The driver of the fire engine tested positive for cannabinoids, according to a Washington State Patrol toxicology report included in the investigation.

A blood draw was taken and the driver was found to have a Carboxy-THC level of 6.3 nanograms per milliliter of blood drawn. The chemical is non-active and stays in a person’s system for “several days,” according to the report.

Active, or Hydroxy, THC is what causes impairment and euphoria; that was not in the driver’s blood, according to the report.

A driver who has at least 5 nanograms per ml of Hydroxy-THC will lose his or her license for 90 days and face possible prosecution for DUI.

The driver was on day two of a 48-hour shift. He told investigators he had slept about seven hours the night before.

How the crash occurred

The fire engine was returning from a structure fire. The occupants — the firefighter behind the wheel and an NKF&R lieutenant in the passenger seat — stopped at NKF&R headquarters on Miller Bay Road to resupply the engine, and were returning to their station, Station 85 on South Kingston Road.

The engine came to a full stop in the southbound left-turn lane of Miller Bay Road, waiting to turn onto West Kingston Road. The driver of the engine began to make the left turn, but stopped when he saw two bicyclists approaching the intersection in the northbound lane.

As the driver waited, all lights for southbound Miller Bay Road turned yellow.

The bicyclists made a hard stop on their end of the intersection. Lights then turned red for southbound traffic.

“That’s when I looked up, saw that the yellows had gone completely red … and started to move forward, took my foot off the gas and immediately [the lieutenant] said ‘stop’ and that’s when I looked back up at the bicyclists,” the driver told investigators.

At that point, the cyclists told investigators, Foster passed them on their left and entered the intersection. The engine was at a complete stop when Foster’s scooter crashed into it, according to the investigation report.

“Based on the investigation, it was obvious both occupants [of the engine] were focused on the actions of the bicyclists,” the investigator wrote.

What witnesses saw

The fire lieutenant in the engine said he told the driver to stop because he saw approaching bicyclists and wasn’t sure if the driver had enough time to turn without cutting them off.

The lieutenant admitted he was focused on the bicyclists and never saw Foster enter the intersection. Then he felt the impact and realized the engine had been struck by another vehicle.

Both cyclists said they believe the northbound lights were yellow when Foster entered the intersection. The cyclists and another witness — a driver in the left-turn lane of West Kingston Road, waiting to turn onto southbound Miller Bay Road — said Foster was traveling at an excessive speed. However, investigators determined Foster’s speed when entering the intersection was 34.55 mph, below the 45 mph speed limit.

The traffic study

A traffic study focused on how fast Foster was traveling and at what point he likely saw the fire engine as a threat and reacted.

Based on a speed of 34.55 mph, the investigator determined Foster was approximately 167.05 feet from the fire truck when the truck moved seven feet out of its turn lane. When Foster reacted and hit his brakes, he was 99.69 feet from impact, but would have needed 127.98 feet to come to a complete stop.

The investigator determined Foster could have perceived the engine as a potential danger from 531.45 feet away. However, when Foster first observed the fire engine, the engine was fully in the left turn lane. When he went around the cyclists, the engine moved and crossed the center line. By the time Foster saw the engine again, it had moved into the northbound lane.

The light is yellow for 4.5 seconds before turning red. That means Foster was in the intersection in the middle of the light’s cycle and had the legal right-of-way.

Foster’s wife, Sandy, said on Dec. 23 that she has had no contact from law enforcement or the prosecutor’s office regarding the status of the investigation. “I haven’t talked to an investigator since the accident,” she said.

She said the last contact she had from any authority was a sympathy card from NKF&R after the collision.