PORT ORCHARD — A former Bainbridge High School student who fell asleep at the wheel after an all-night graduation event in 2018 and struck two joggers, killing one and seriously injuring the other, won’t face charges.

In a 14-page memo issued May 16, Prosecutor Chad Enright wrote that Kevin C. McCann, then 18, was at fault for striking the two joggers the morning of June 17, 2018: Chris Fendrich, 48, of Seattle, and Troy Scott, 42, of Bainbridge Island.

However, after having multiple attorneys review and re-review the case — including a King County prosecutor — Enright said the office did not believe it had evidence to charge McCann with a crime.

“Every prosecutor in my office who reviewed this case, including myself, immediately concluded that this must be a crime,” Enright wrote. “It can be personally disappointing when you’ve invested in a result, but later find that the facts and the law take you to a different destination.”

McCann will face a civil citation for second-degree negligent driving with a vulnerable user, Enright said in an interview.

At about 9:25 a.m. on the day of the incident, McCann was driving his father’s 2006 Honda CR-V north on Finch Road approaching Sportsman Club Road when he “drifted off for a second and hit them,” McCann told an officer.

McCann said he woke up just before impact and started to brake. No alcohol or drugs were found in McCann’s system, though an analysis found that McCann had been traveling between 6 and 13 mph over the 30 mph speed limit on the road.

Officers called to the wreck found McCann in the ditch performing CPR on Scott. During an interview, McCann told investigators that he had arrived home from Bainbridge High School’s “Grad Night Out 2018” at 6 a.m. and had not slept. He was driving to meet his parents at church to watch his sister in a flute performance.

Fendrich and Scott were friends and avid runners — both had competed in the Boston Marathon and were training for a 5K. They were on the shoulder of the road when McCann’s Honda CRV left the roadway and struck them from behind.

Fendrich, a fiscal specialist with the Department of Economics at the University of Washington, died from his injuries the next day. Scott was left paralyzed from the neck down.

Scott’s wife, Dorothy Stam, declined to comment. Efforts to reach Fendrich’s wife were unsuccessful.

An attorney representing McCann wrote in a statement that McCann and his family grieve for Fendrich’s family and will always pray for Scott’s recovery.

“This was a tragedy,” attorney Cooper Offenbecher wrote. “We commend Kitsap County Prosecutor Chad Enright and his office for making the decision to decline to file criminal charges. This was the correct and just decision after a thorough review of the law and facts.”

Enright noted that the crash would not have occurred but for the decision by McCann to drive after he had been awake all night.

“But causation is insufficient to establish criminal liability,” Enright wrote. “If it were, then nearly every traffic collision resulting in injury would be a criminal offense, since nearly every traffic collision is caused by the conduct of someone.”

Enright’s memo details lengthy efforts by the office to investigate the possibility of charges as well as explanations of case law that could apply to the case.

“While some may disagree with our conclusions, that should not diminish the fact that this case has been rigorously reviewed in a manner I wish we had the resources to review every case with,” Enright wrote, adding: “Declining charges can be deeply unsatisfying.”

In his analysis, Enright found that the most viable argument for criminal charges is that McCann’s decision to drive showed a “disregard for the safety of others,” however, case law said that the disregard must be “conscious.”

The “conscious” decision also factored into McCann’s alleged speeding. Though the analysis showed McCann was speeding, “There is insufficient evidence to establish that Mr. McCann willfully chose to speed and willfully chose to drive onto the shoulder of the roadway,” Enright wrote in the memo.

The “best evidence” that McCann knew he shouldn’t drive, Enright wrote, was that the school warned students not to drive home and required that someone pick students up, but this was circumstantial and not enough to file charges.

“We cannot merely argue that Mr. McCann ‘should have known’ he was unsafe to drive,” Enright wrote, noting that no evidence was gathered from witnesses showing lack of sleep was affecting McCann. “We must have evidence that he actually knew.”

McCann's case is similar to that of Ashley Ann Mayes, 29, who pleaded guilty to vehicular homicide for a 2016 wreck that killed Gian King, 18. Mayes said she fell asleep behind the wheel while driving her 5-week-old son down National Avenue in Bremerton and crashed at high speed — more than an estimated 80 mph — into a car carrying King. Investigators did not allege Mayes was impaired at the time of the crash. She was sentenced to 32 months in prison.

Enright said a difference between the cases was that witnesses told investigators they saw Mayes' car take evasive action and pass another car over the three-quarters of a mile before the crash.

"I don't believe that the other evidence is consistent with her story that she fell asleep," Enright said. "Whereas in this case, the physical evidence at the scene is consistent with Mr. McCann's statement that he fell asleep."

Though the decision means that criminal charges won't be filed, McCann could still be sued in a civil lawsuit.

Prosecutors consulted with family members of Fendrich and Scott, made additional reviews of the case at the request of family members, and addressed specific questions by family members, but Enright wrote that with each turn attorneys arrived at the same conclusion.

The memo also addressed the suggestion that in cases like this prosecutors should file charges to allow a jury to decide, or that if McCann faced charges he might plead guilty to a lesser charge for fear of being sent to prison.

“It’s not enough for a defendant to eventually receive a fair trial by an impartial jury,” Enright wrote in the memo. “The decision to file charges in the first place must be just, supported by the facts and supported by the law.”