The investigation into the savage beating of Australian high school teacher Robert Scott in California remains open and evidence will be re-submitted to prosecutors later this week.
Scott, 26, was punched in the face on a residential street in Fresno, a city 320km north of Los Angeles, on August 17.
The former rowing champion suffered a fractured skull and brain damage when his head hit the asphalt road.
He has remained on life support and in a coma since.
Scott's family, from the mid north NSW coastal town of Pacific Palms, is frustrated the alleged assailant and admitted associate of Fresno's Bulldog gang, Gilbert Romero, has not been charged.
The Fresno District Attorney declined to charge Romero after detectives located and arrested him on a felony battery charge.
Lieutenant Mark Salazar of the Fresno Police Department's murder-robbery unit said his unit will re-submit the case to the DA later this week.
"We hope when we re-submit it something will happen with the case," Lt Salazar told AAP on Tuesday.
Scott, who taught physical education at several high schools in Tamworth before flying to the ski resort of Banff in Canada to work, was in Fresno visiting a friend.
Scott and another friend, Norwegian tourist Helena Sordal, were walking along a street at 9pm when the confrontation occurred.
Lt Salazar said Scott had been drinking alcohol from 11am up until the confrontation, which complicated the case.
Scott's blood-alcohol reading was 0.24 and an officer who went to the scene said Sordal was so drunk they had to get her personal information from her passport because she was unable to tell them, according to police.
"What we do have is Robert was in the middle of the street, his friend Helena was carrying an 18-pack of beer, a car went around them and that contained Romero's girlfriend, his one-year-old son and his sister-in-law," Lt Salazar said.
"The sister-in-law exited the car, went to the house where Gilbert Romero was in, as she was doing that she noticed Robert Scott yelling at Romero's girlfriend.
"She told Romero this, Romero went outside, he saw Robert Scott yelling obscenities at the girlfriend, his one-year-old son was crying and that's when he confronted Mr Scott."
Romero's witnesses told police Scott had a beer can in his hand, threw a half punch and Romero hit him once.
However, Lt Salazar said the witnesses initially told police they did not know who Romero was.
"It is tough when there is no physical evidence, when you have one side and it's the suspect's side and they did lie initially," Lt Salazar said.
In deciding not to charge Romero, the DA pointed to Romero possibly acting in self-defence and Scott's intoxication, Lt Salazar said.
Scott, who may never recover from his injuries, was flown on a Lear jet air ambulance back to Sydney last week and remains on life support and in a coma at Royal North Shore Hospital.
His almost two-month US hospital stay and flight back to Australia has led to a $US1 million-plus bill.
Scott had travel insurance, however without Romero being charged and alcohol being a factor the family fears the insurance company may not pay.
The family has hired a Fresno lawyer, Benjamin Tryk.
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