(Stillwater, Okla.) – A Mack dump truck driver was charged Monday with negligent homicide in a Highway 33 collision west of Cushing that took the life of KUSH radio station owner Sean Kelly, 53, of Stillwater, nearly a year ago.

The defendant, David Bruce Thomas, 52, of Shawnee, then an employee of Kinder Dozer Inc. of Carney, was not arrested when the charge, which is a misdemeanor, was filed by Payne County Assistant District Attorney Tyson Branyan 11 months after the fatal accident.

Instead, Thomas was mailed a letter on Monday ordering him to voluntarily appear in court on Jan. 29, 2015, or a warrant would be issued for his arrest, court records show.

Thomas was alleged to have caused Kelly’s death “by failing to safely overtake and complete a pass of the victim’s 2005 Chevrolet pickup truck…and colliding into the driver’s side door area of the pickup truck,” which Kelly had slowed, according to the charge.

At the time of the 2:59 p.m. Jan. 29, 2014 collision, Kelly was covering a large grass fire for KUSH radio and was in the process of making a left turn at the intersection of Stiles Road and Highway 33, according to court records.

Twenty-three witnesses for the prosecution, including nine firefighters and five Oklahoma Highway Patrol troopers, were listed on the charge, court records show.

According to an OHP report, Kelly was driving at a slow rate of speed on Highway 33, two miles west of Cushing, with a Cushing man traveling behind him.

Kelly signaled for a left turn as they approached Stiles Road, the witness said, according to the OHP report.

The defendant was also traveling east on Highway 33 and noticed that Kelly’s pickup and the witness’s vehicle were traveling slow and started to pass, the OHP report said.

As Kelly turned left, his pickup was struck by the Mack truck, the OHP report alleged.

The Mack truck driven by Thomas “was not able to complete pass without interfering with the safe operation of the vehicles being overtaken,” the OHP report alleged.

“At the time of the accident, there were fire trucks stationed just south of State Highway 33 on Stiles Road with emergency lights activated,” the OHP report said.

State law “states the driver shall proceed with due caution and reduce the speed of the motor vehicle to a safe speed for the existing road, weather and traffic conditions,” the OHP report said.

OHP Trooper Todd Blaylock “determined five of the eight brakes were out of adjustment,” on the Mack truck driven by Thomas, the OHP report alleged.

Kelly was transported by Air Evac to St. Francis Hospital in Tulsa where he was admitted in critical condition with head and trunk internal injuries, an OHP report said.

Kelly died the following day from injuries sustained in the collision, the OHP report said.

Although two forensic toxicologists with the Oklahoma State Bureau of Investigation’s laboratory were listed on the charge as witnesses for the prosecution, the charge did not allege that the Mack truck driver was under the influence of any intoxicant, court records show.

However, in a civil lawsuit filed in October by Kelly’s widow, Mary Kelly, against Thomas and Kinder Dozer Inc., her attorney, James Murray of Stillwater, alleged that “Thomas was operating a commercial motor vehicle while under the influence of methamphetamine.”

In responding to the civil lawsuit in November, Thomas, through his attorney, Jon D. Starr of Tulsa, denied that Thomas was under the influence of methamphetamine at the time of the collision. Thomas also said that he was without knowledge to form a belief as to the allegations that the Mack truck had five of its eight brakes out of adjustment, “and therefore he will deny the same and demand strict proof thereof at the time of trial,” in the civil lawsuit.

In answering the civil lawsuit on Monday, Kinder Dozer Inc., through its attorney, Rodney C. Ramsey of Oklahoma City, admitted that Thomas was its employee at the time of the accident, but denied that Thomas was under the influence of methamphetamine and denied that five of the Mack truck’s eight brakes were out of adjustment.

Both Thomas and Kinder Dozer Inc. claim that the sole cause of the fatal accident was Kelly’s negligence, according to their answers in the civil lawsuit, which remains pending.

If convicted of the criminal misdemeanor charge of negligent homicide, Thomas could be given a maximum penalty of a one-year jail term and a $1,000 fine, court records show.