A tour bus crashed into a construction site in the area of Stockton and Post streets near Union Square on Nov. 13, 2015. (Mike Koozmin/S.F. Examiner)

A tour bus crashed into a construction site in the area of Stockton and Post streets near Union Square on Nov. 13, 2015. (Mike Koozmin/S.F. Examiner)

At-fault tour bus driver won’t face criminal charges for Union Square crash

The big blue double-decker, open-topped tour bus was heading east on Post Street when something went wrong Nov. 13, 2015.

First, the bus hit a bicyclist near Taylor Street. Soon it was speeding at 45 mph through a dense and pedestrian-heavy part of downtown. Along the way, it hit cars and signs and barriers before finally striking scaffolding at a construction site in front of the incomplete new Apple store at Union Square.

Nineteen people were injured, including 16 who were taken to a hospital.

On Wednesday, much of what happened that day was retold by California Highway Patrol and San Francisco Police Department investigators. The crux of their findings was that collision was not because of any mechanical failure in the bus — rather, it was due to operator error and the driver has since been cited for speeding.

“Our inspection did not reveal any pre-existing mechanical conditions or failures that would have affected the safe operation of this vehicle on the highway. All damage that was evidence was determined to be a result of this collision,” CHP Captain Christopher Sherry said at a news conference announcing the results of the crash investigation.

But the driver, 54-year-old Kenneth Malvar, a former U.S. Marine who remains in a wheelchair because of the crash, will not be charged with a crime. No criminal charges will be filed in the matter because, as District Attorney Spokesman Alex Bastian said, “there isn’t any crime.”

Still, questions remain about who — if anyone — is at fault, and what might have been done to prevent the crash, and what lawmakers may do to help prevent such incidents in the future.

The larger issue at hand is an industry that needs more regulation, said Malvar’s lawyer Robert Cartwright, who pointed to the maintenance record and treatment of employees by bus owner CS Global, LLC.

“The easiest way to come to a conclusion when you can’t find the mechanical cause is simply blame the driver,” Cartwright said.

Cartwright said his client heard a pop when the accelerator pedal appeared to have become stuck. He tried to apply the brake to no avail and maneuvered the bus the best he could away from people.

“We are disappointed that the cause of the mechanical failure has not been determined,” said Cartwright, adding that the evidence involved in the investigation was destroyed, making it impossible for a third party review of the findings.

“What really happened here has not been determined,” said Cartwright.

Cartwright said his client is willing to take a polygraph test, but investigators said they found no sign of the brakes being used. They also did not find any evidence that Malvar was suffering from fatigue from being overworked or lack of sleep.

Tour bus safety remains a concern for The City, as multiple crashes causing injury or death have occurred since November’s incident, the San Francisco Examiner has previously reported.

On Jan. 16, a man in his 70s was struck and killed by a tour bus while crossing the street at Post and Divisadero streets in Pacific Heights. Separately, eight people were injured when a tour bus crashed near the Ferry Building on Dec. 26 along The Embarcadero at Broadway.

State lawmakers have announced various pieces of legislation since November’s crash to increase regulations on tour bus safety inspections in California.

Such legislation would require the state to inspect tour bus companies more frequently, as well as test such buses more randomly to prevent gaming of the system, and for the DMV and CPUC to exchange information on new buses. Buses purchased out-of-state would also need to be inspected before operating in California.

CPUC spokeswoman Constance Gordon said shortly after the November crash that neither the license plates nor the bus were registered with the CPUC, and therefore it was operating in the company’s fleet without being inspected by the state.

A subsequent report from the CHP also found fault with the company’s fleet. CrimeSan Francisco Police DepartmentTour busTransittransportationUnion Square

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