News

Jun 11, 2023

Charges not sought in Nestucca Bay boating accident drowning

Criminal charges will not be sought in the boating accident in the mouth of Nestucca Bay on July 7, that led to the drowning death of a 15-year-old boy. Tillamook District Attorney Aubrey Olson

Criminal charges will not be sought in the boating accident in the mouth of Nestucca Bay on July 7, that led to the drowning death of a 15-year-old boy.

Tillamook District Attorney Aubrey Olson declined to pursue an indictment against Timothy Brewster, despite the Sheriff’s department recommending she do so. Olson told the Herald she did not feel she could prove beyond a reasonable doubt that Brewster’s boat operation was reckless under Oregon statute and that Brewster had already been punished enough by the passing of his son.

“Frankly, it seems to me like the consequences and the result far outweigh his actions,” Olson said. “Mr. Brewster is basically serving a life term.”

The tragedy unfolded on the evening of July 7, as Brewster and his sons, aged 15 and 17, were crabbing in the mouth of the Nestucca bay in a 12-foot aluminum boat. While their pots were soaking, Brewster began “riding the swells back into the bay,” which he told the sheriff’s deputy who investigated the incident his sons enjoyed.

When Brewster made an ill-timed turn in front of a swell that turned into a whitecapped wave, the boat capsized throwing all three occupants into the water, near the north side of the channel. At the time, only Brewster’s 17-year-old son was wearing a lifejacket, while the 15-year-old was not.

The three began swimming towards the south of shore of the river, with the younger boy quickly beginning to struggle and panic in the outgoing tide. Brewster told the deputy investigating the incident that at one point he had to push his son away to avoid drowning himself.

When Brewster and his 17-year-old son reached the south side of the Nestucca, they briefly yelled for the missing boy, before scrambling up a hill to a nearby house, whose occupant called 911 around 8:30 p.m.

Firefighters, ambulance crews and sheriff’s deputies quickly responded to the scene and were joined shortly after by a motor lifeboat and helicopter from the United States Coast Guard, to aid in the search. Searchers were unable to locate the missing boy and the search was called off at 11 p.m. before resuming at 8 a.m. the next day.

Brewster and his surviving son were transported to Adventist Tillamook Hospital and treated for mild hypothermia, before being released later that night.

On July 13, deputies were alerted to a body on Winema Beach, which they identified as that of the missing 15-year-old. The boat was recovered from the south side of the Nestucca on July 9.

The capsizing of the boat was caught on video, which was provided to the deputy investigating the case and reviewed by the Herald.

In the investigation report, the deputy assigned to the case describes Brewster’s 12-foot boat as having low sides and being powered by a 7.5-horsepower, outboard motor. The deputy noted that these types of craft were prone to taking on water and that the mouth of the Nestucca bay was “a very dangerous place to operate a vessel.”

Brewster told the deputy that there had been two lifejackets onboard at the time of the incident, but that only his 17-year-old son had been wearing one. He explained that the other lifejacket had been a self-inflating model that his sons had deployed out of curiosity earlier in the evening.

After that, Brewster’s younger son took off the device, finding it cumbersome, and Brewster told the deputy he had not made him put it back on. The deputy investigating the case found that Brewster had an Oregon Boater Education Card and said that he claimed to have more than 500 hours’ experience operating a vessel.

Given the inadequacy of the vessel for the conditions, the deputy referred the case to the district attorney’s office, asking for consideration of a charge of reckless boating against Brewster.

“Brewster knew or should have known just before the capsizing his vessel was not adequate for the conditions he was operating in,” the deputy wrote.

However, after reviewing the investigative report and video, Olson reached a different conclusion.

Olson told the Herald that her decision was informed by the Oregon statute that defines reckless operation for the purpose of criminal charges. That statute requires that a person is “aware of and consciously disregards a substantial and unjustifiable risk” that could arise from their actions. Olson noted that Brewster had consulted tide charts and launched his boat at slack water, as evidence against his disregard for risk.

“Based on those facts, it just sounds like he misjudged,” Olson said. “He misjudged a wave and it led to his boat capsizing and tragic consequences.”

Olson, who was previously a wildland deputy and has experience boating in Nestucca Bay in that capacity and recreationally said that the bay could be “deceiving” and that it was “debatable” whether Brewster’s operating had been reckless.

Olson also said that when considering charges, she weighed other factors in addition to being able to prove charges beyond a reasonable doubt, including resource allocation and deterrent effect.

Reckless boating is a misdemeanor that carries a maximum penalty of up to one year’s incarceration. Olson said that she believed when considering the low penalty associated with conviction, the loss of his son and a desire not to “do any further harm to the family,” the decision not to prosecute Brewster was merited.

“The more serious thing her is there’s a real risk to the loss of life,” Olson said. “That in and of itself should be the bigger deterrent factor than a criminal conviction.”

Undersheriff Matt Kelly disagreed with Olson that the charge of reckless boating could not be proven beyond a reasonable doubt. Kelly said that the decision to navigate the mouth of the bay in a small craft with low sides on outgoing tides was “easily” reckless. He also said that Brewster’s statements were corroborated by the video, giving ample evidence for a prosecution.

“I think we could prove the case beyond a reasonable doubt,” Kelly said. “It’s consistent with what we’ve seen, it’s consistent with the father’s statements and the video matches that.”

Kelly said that sheriff’s deputies are working to issue violations for marine violations committed by Brewster, including not having lifejackets for all passengers in the craft. The sanctions attached to violations are limited to fines.

“In light of the decision not to proceed, I will direct our deputies to issue violations to the highest we can go to to at least have some accountability,” Kelly said.

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