Ocala man charged with DUI manslaughter in crash that killed mother and son after officer let him drive away

Ocala police on Friday, Oct. 30, arrested a 33-year-old man and charged him with two counts of DUI manslaughter in a September crash that killed a mother and her adult son, minutes after an Ocala officer encountered the man and his brother on the side of the road and let them drive away without a DUI investigation.

The Ocala Police Department arrested Joel Gonzalo Zelaya following its investigation into the Sept. 29 collision at Southeast Maricamp Road and Southeast 36th Avenue, WFTV reported. Investigators determined that his blood alcohol concentration exceeded Florida's legal limit at the time of the crash, according to police. He was booked into the Marion County Jail and is being held without bond.

The crash killed De Lawn Marshall Duncan, 51, and her 31-year-old son, Eric Derick Maurice McGill. Some early reports listed Duncan's age as 50.

The roadside encounter

The case drew attention across Central Florida because of what happened before the crash. Early on Tuesday, Sept. 29, minutes before the crash, an Ocala officer saw a vehicle partially blocking a lane of traffic in the 2400 block of State Road 200, according to police accounts reported by WFTV and News 6. Two adult brothers, ages 33 and 24, were standing on the sidewalk arguing over who would drive home.

Body camera video released by the department shows the encounter. In the video, one of the men told the officer that it was his birthday and that his brother had drunk more than he was supposed to, according to WFTV. FOX 35 reported that the driver told officers his younger brother had "been drinking a little bit more than I have."

Officers did not conduct a DUI investigation or question the driver about his sobriety, police said. The brothers were allowed to leave. Minutes later, their dark red Dodge minivan crashed into a black Mazda SUV carrying Duncan and McGill at Maricamp Road and 36th Avenue, according to police. Both victims were pronounced dead at the scene. Investigators believe speed was a factor, FOX 35 reported.

The driver of the minivan was hospitalized in critical condition after the crash, and his younger brother suffered minor injuries, Police Chief Mike Balken said at the time. WCJB reported Friday that police said both brothers admitted they had been drinking at a bar before the crash.

The chief's apology

At a news conference days after the crash, Balken publicly acknowledged that his officers should have done more.

"I am profoundly sorry. I only wish we had done more to prevent this tragedy," Balken said, according to WFTV.

Balken said the primary officer, who was on scene for the entire interaction, was "extremely new to the agency" and had been out of field training for about 30 days. A backup officer and a sergeant arrived later but were not aware of the signs of impairment the first officer had observed, the chief said. He said Ocala officers go through a recruit academy, a four-month field training program and a month of orientation, and that the department was "not chalking this up to a failure to train."

The chief said anyone watching the video could conclude, from the statements alone and other indicators, that the driver was under the influence. He also said at the time that he expected traffic homicide investigators to bring a felony charge such as DUI manslaughter, the charge filed Friday.

Internal review of the officer

The primary officer was placed on paid administrative leave, and the department opened a formal internal affairs investigation. FOX 35 reported that a second officer and the supervising sergeant were reassigned while the department reviews the actions of all three. Police have not released the officer's name.

Balken said possible discipline ranges up to "termination for sure." He estimated in early October that the internal affairs review would take about four weeks or less. As of Friday's arrest, published reports did not include any finding or disciplinary decision from that review.

Balken said he asked the State Attorney's Office whether the officer could face criminal charges for failing to act. Prosecutors reviewed the matter and determined the officer's conduct did not rise to the level of a criminal offense, according to WFTV and News 6.

Two retired Central Florida law enforcement officers who reviewed the video for FOX 35 offered a more mixed assessment. Both said the younger brother appeared intoxicated, but one said the driver did not show many of the physical signs typically associated with impairment, and both noted a DUI arrest might not have been legally justified because neither man was behind the wheel when officers arrived. They said officers still had other options, such as calling a family member or a cab or having the vehicle towed.

The family's response

Attorneys for the victims' family said in a statement that they appreciated the department's transparency but that it "should not overshadow the decisions and events that preceded this devastating loss."

"This tragedy began with the decision of the driver to get behind the wheel after drinking," the statement said, adding that there are "serious questions regarding the actions and missteps of the officer who encountered the driver prior to the crash." The family described Duncan as a mother, wife and sister and asked for privacy. A GoFundMe was set up to help with funeral and burial costs. Duncan's husband told News 6 the family had retained an attorney; it is not clear whether the family plans to sue.

The charges

Under Florida law, DUI manslaughter is a second-degree felony, punishable by up to 15 years in prison on each count, and a conviction carries a mandatory minimum sentence of four years. Zelaya is charged with two counts, one for each victim. He has not been convicted, and the charges are accusations that prosecutors must prove in court.

What's next

Zelaya's case now moves to the State Attorney's Office for the 5th Judicial Circuit, which covers Marion County, to decide on formal charges. He is expected to make a first appearance before a judge, where the question of bond can be revisited.

The Ocala Police Department's internal affairs investigation into the officers' handling of the roadside encounter remains open. Its findings, and any discipline, will determine whether the officer who let the brothers go remains with the department.