In December, emergency crews arrived in Simonton to find Charles Tovar’s 2005 Toyota Prius in a ditch.

He was only 19-years-old.

The police report accuses the driver of a white Ford pickup of driving drunk, running a stop sign and slamming into Tovar’s car.

Tovar died three hours later.

“In buying this vehicle, the side air bag was an option and they chose that option,” said the Tovar family attorney, Richard Mithoff.

Video of side air-bag tests show that the bag is supposed to inflate when hit from the side.

But the blue airbag in Tovar’s car didn’t do that said the family’s attorney,  Mithoff. “We know the airbag that was supposed to deploy the side airbag did not deploy.”

Toyota had issued a voluntary recall of some of its vehicles, warning the air bags might not work.

Tovar’s attorney got Toyota’s list of the cars supposedly affected.

But Tovar’s car was not on the list.

So, the question now is why didn’t the airbag deploy? 

“There are obviously a number of 2005 Prius vehicles and only a certain number were on the recall list,” said Mithoff. “We don’t know now whether the defect involved here in the failure to deploy is the same defect that is the subject of the recall or not.”

On Tobar’s MySpace page, friends grieve.

On Valentine’s Day, he would have been 20.

“The family’s concern is that there may be other vehicles out there like this that should have been subject to a recall,” said Mithoff.

It’s a question the attorney may answer with a lawsuit filed Monday in Houston.

11 News called Toyota for comment but did not receive a call back.

In an online safety rating, the 2005 Toyota Prius had a good safety rating.

It received four stars during crash tests.

In the case of being hit on the driver’s side, the vehicle earned the highest rating, five stars.

The Tovar family’s attorney says the roof in Charles Tobar’s car did not cave in during the crash.