Former state legislator and school bus driver Timothy Whalen was sentenced to state custody Wednesday for hitting a 15-year-old student in a crosswalk while driving the bus drunk.
Whalen, 54, was sentenced to six years with the State Department of Corrections, with 18 months suspended, for felony negligent vehicular assault and criminal endangerment. He was taken into custody at the close of the hearing before Judge Ingrid Gustafson.
Gustafson rejected a request from Whalen and his defense attorneys, Kris Copenhaver and Fred Snodgrass, for a three-year deferred sentence. The attorneys argued that Whalen deserved the sentence because he has no felony criminal record, had completed alcohol treatment and had suffered enough.
The judge also said a recommendation from Deputy County Attorney David Carter for a 10-year sentence, with five years suspended, was too harsh. Carter said Whalen had not accepted full responsibility for his crimes, which could have resulted in the female student's death.
Gustafson also ordered Whalen to perform 100 hours of community service at the Self Help Law Center or similar community legal organization. Whalen is an attorney, but will likely lose his license to practice law as a result of his convictions, the judge noted.
Gustafson recommended that Whalen be placed in a pre-release center to serve his sentence. She gave him credit for 87 days he has already spent in custody.
Gustafson delayed a decision on whether to order Whalen to pay about $6,000 in restitution requested by prosecutors. She asked the lawyers to submit briefs on whether she can order Whalen to pay back the money that the bus company's insurance paid to cover the girl's medical costs.
The sentencing hearing included testimony from three witnesses, including the girl's mother, who read a statement from her daughter about how the incident affected her life.
A local attorney and a friend of Whalen, Patrick Sheehy, and Whalen's sister from New Mexico, Annie Coogan, who is also an attorney, spoke on his behalf.
Whalen spoke before he was sentenced, telling the judge he was ashamed to be in front of her as a criminal defendant. He said he never intended to hurt anyone and offered an apology.
“I wish I could undo what I've done, but I can't,” he said.
Whalen served four terms as a Democratic state legislator from Billings between 1986 and 1994.
Whalen was driving a First Student school bus on Sept. 25, 2009, when he failed to stop at a red light on Central Avenue at Santa Fe Drive shortly after 7 a.m. West High student Eleanore Dykes had just stepped into the crosswalk when the bus hit her, fracturing her leg and causing numerous cuts and bruises.
“I took maybe three or four steps when I got hit,” Dykes wrote in the letter read by her mother, Jane Reusink, in court. The teenager did not attend the hearing.
“The force was tremendous, like being tackled by a linebacker. I suddenly was lying in the street, with no idea what just happened.”
Whalen stopped the bus and got out briefly, but then drove on to the high school. Before Whalen left, Dykes said, she asked him what happened. Only one person stopped to help her, she said.
“Everyone else just drove by, completely disregarding the bleeding, crying girl by the side of the road,” Dykes wrote in her statement. “Even Timothy Whalen, the driver of the bus that hit me, left the scene after learning that I did not know that it was him who hit me.”
But the incident was reported to First Student by another bus driver, and Whalen was ordered to return to the scene. About two hours after the incident, Whalen gave a breath test that showed his blood-alcohol level was 0.118 percent, well above the state legal limit of 0.04 percent for commercial drivers.
Whalen was fired by First Student, and prosecutors charged him with felony counts of negligent vehicular assault, criminal endangerment and failing to remain at the scene of an accident. An arrest warrant was issued, and on Nov. 4, 2009, Whalen was arrested in Washington state near the Canadian border.
Whalen was returned to Billings and was released on a $50,000 bond after his arraignment on Dec. 11, 2009. In August, Whalen pleaded guilty to the two felony counts after lengthy negotiations with prosecutors. Two felony charges were dismissed as part of the agreement.
Dykes said in her statement that she suffered no permanent physical injury, but her recuperation was slow and painful. Her injuries caused her to miss many activities, she said.
“Along with my body, my pride suffered significant damage, too,” Dykes wrote. “It was as hard for me to have to ask for help with things, and things that I could previously do, like cross-country, were now out of the question.”
Dykes said she was distraught about the injuries to her face and asked her sister to cover up mirrors so she wouldn't have to look at herself.
“It isn't fair what happened to me,” the now-16-year-old West High junior wrote. “It isn't fair that my family and friends had to endure unnecessary suffering, and I think it's about time that Timothy Whalen is held responsible for causing that suffering.”