Fatal Portillo's Crash Cause Determined, No Charges Will Be Issued: Oswego Police

OSWEGO, IL — No charges will be issued in connection with the Portillo's crash that killed a child and injured several others over the summer, Oswego police said Wednesday afternoon.

After almost three months, the Oswego Police Department concluded its investigation to determine the July 30 collision was caused by "driver error," according to a news release.

Two-year-old Finnegan McKee died, and 12 others were injured, when a 2011 Lincoln MKZ sedan plowed through the entrance of the restaurant on Route 34, which was not protected by bollards or any barrier. The parents of the toddler filed a lawsuit against Portillo's, seeking more than $50,000 in damages and calling for safety precautions to be "implemented at all businesses to prevent this from happening to anyone else."

"Investigators found that the driver mistakenly pressed the accelerator instead of the brake, causing the vehicle to strike the restaurant," officials said Wednesday.

The driver was a 50-year-old woman from Canton, Michigan.

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Five seconds of pre-crash information retrieved from the sedan revealed the brake pedal was not engaged, and the vehicle had been moving at about 5-6 mph as it entered the parking space. The accelerator pedal increased from 5.6 mph to 14.9 mph in the final seconds before impact, according to police.

"The vehicle's anti-lock braking system (ABS) showed no activity during the entire five seconds, confirming the brakes were never applied," officials wrote in the release.

Impairment by drugs or alcohol wasn't a factor either, investigators determined. Toxicology testing, which screened for 155 substances, did not reveal the presence of alcohol. It did show a THC level of 1.4 ng/ml, which is well below Illinois' legal threshold of 5 ng/ml for driving under the influence.

Investigators also determined the driver was not using her phone for anything except navigation.

Police concluded charges of reckless homicide or involuntary manslaughter were not appropriate, citing that the driver's actions did not meet the legal requirements for the offenses.

"There was no evidence of a willful or wanton disregard for the safety of others, which is a required element for charges," officials said. "Additionally, no citations were issued because Illinois law limits what charges can be filed for crashes on private property, and none of those apply to this case."

Ultimately, Oswego police concurred with its statement in July that the crash was a "tragic accident."

RELATED: After 'Unimaginable' Portillo's Tragedy, Kauffman Says 'Nothing Is Off The Table' In Safety Discussions

"This was a careful and comprehensive investigation," Oswego Police Chief Jason Bastin said. "Our detectives reviewed all available evidence, including forensic data, witness statements, medical records, and vehicle analysis. We determined this was a tragic accident in which the driver was at fault, but her actions were not criminal. We extend our deepest sympathies to the family, friends, and community members affected by this heartbreaking loss."

The Kendall County State's Attorney's Office reviewed Oswego police's findings and found the investigation to be "thorough and complete," agreeing that criminal charges were not warranted.

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