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1 CHAPTER 18 MURDER, MANSLAUGHTER, VEHICULAR HOMICIDE, DUI WITH SERIOUS BODILY INJURY AND FELONY DUI Anyway, no drug, not even alcohol, causes the fundamental ills of society. If we re looking for the source of our troubles, we shouldn t test people for drugs, we should test them for stupidity, ignorance, greed and love of power Introduction Manslaughter The Elements. 18-2(a). Causation and DUI Manslaughter. 18-2(b). Manslaughter by Deadly Weapon Vehicular Homicide The Elements. 18-3(a). Causation and Vehicular Homicide DUI with Serious Bodily Injury The Elements. 18-4(a). Just How Serious Must the Injury Be? DUI and Murder Charges Felony DUI Introduction. P.J. O Rourke The simple DUI is a difficult enough task for you as an attorney representing an accused to undertake. As I have described in considerable detail in the preceding chapters, there is no more aggressively legislated or prosecuted misdemeanor offense. Moreover, there are few which impact a client s emotional, financial and professional life as strongly as DUI. Representing the DUI defendant is a daunting, yet important endeavor indeed. Imagine, then, if you will, just how much more serious your task becomes when a death or significant injury has resulted because of an alcohol-related crash. Cases involving death or great bodily harm are some of the most angst-ridden an attorney can be called to handle. They are often emotionally charged with the complainant's family enraged on one side, and the defendant s family distraught on the other. Why, a client s family will often ask, does the prosecutor want to send him to prison for so long? He s a good person why he s never even had a speeding ticket before. This is indeed a difficult question. How do we balance the tragic and untimely loss of life or serious bodily injury against the life of an otherwise model citizen a person who may have made one fatal mistake? If there are easy answers to this question, I certainly do not have them. Still, the question highlights the terrible paradox presented to those of you who become involved in such litigation. 395

2 18-1 DRUNK DRIVING AND RELATED VEHICULAR OFFENSES The successful defense of those accused of DUI with death or injury offenses meshes with several of the concepts discussed in other chapters of this book. 1 For instance, accident reconstruction often plays a crucial role for the defense in an accident case. Therefore, it is imperative that you quickly retain an expert and direct an independent accident investigation and reconstruction. Since much of your success at trial will depend upon the skill, care and diligence of your preparation, the artful practitioner must attempt to preserve any potential evidence in the case, including the vehicle or vehicles involved, blood samples, and the like, in order to compare or counter the police investigation into your client s conduct. Additionally, medical records should be quickly ordered and obtained from the paramedics and hospital. Photographs should be taken of the vehicles and the scene of the accident; investigators might take independent statements of witnesses and conduct an area canvas, which I have found often bears fruit of otherwise undisclosed witnesses and/or evidence. A word must be said about the client s role in your case. To be sure, your client can play an integral part in assisting your preparation of the case. Understandably, however, the client especially those suffering their first contact with the justice system are neither aware of nor sensitive to the intricacies of trial preparation, discovery, and motion practice. Communication, not just attorney-to-client, but person-to-person, is invaluable; it will help you win, it will help calm your client s nerves, and, perhaps most importantly, it will inspire your client s confidence in your performance, so that no matter the outcome of the case, your services will be appreciated. Though this stands true as a general principle, with particular regard to the sensitive nature of a DUI/death or injury defense, your client must understand that she should not talk to anyone about the case. This includes taking care to prevent the deposition of your client in the to-be-expected parallel civil action from going forward until after the close of the criminal prosecution. 2 Additionally, you should make contact with the lead officer as well as the lead prosecutor, both verbally and, without doubt, in writing, to notify them that the client does not wish to make a statement at this time, and that, in the unlikely event the police intend to prosecute her for the offense, it will not be necessary to arrest her for you will gladly make arrangements for her voluntary surrender. 1. See, e.g., Chapter 21 (Accident Investigation and Reconstruction), Chapter 15 (Expert Witnesses), Chapter 9 (Blood Tests), etc. 2. It is settled law that the privilege against self-incrimination may be properly asserted during discovery proceedings if the civil litigant has reasonable grounds to believe that direct answers to deposition or interrogatory questions would furnish a link in the chain of evidence needed to prove a crime against him. Childs v. Solomon, 615 So. 2d 865, 866 (Fla. 3d Dist. Ct. App. 1993) (civil action may be continued based upon claimant s assertion of privilege against self-incrimination to delay answering deposition questions); Miami Nat l Bank v. Greenfield, 488 So. 2d 559 (Fla. 3d Dist. Ct. App. 1986) (civil trial delayed until criminal prosecution is completed or abandoned), rev. denied, 497 So. 2d 1217 (Fla. 1986). 396

3 MURDER, MANSLAUGHTER, ETC Manslaughter The Elements. The ever-ominous crime of DUI manslaughter occurs when an individual is DUI 3 and, by reason of the operation of a motor vehicle, causes the death of any human being. 4 The criminal element comes, in part, from [t]he killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification. 5 Whereas vehicular manslaughter occurs when one drives a vehicle in the commission of an unlawful act, not amounting to a felony, and with gross negligence, 6 manslaughter usually involves the concept of culpable negligence that is, whether the driver breached a legal duty for which she should be punished. 7 Culpable negligence has been suggested to be the equivalent of gross recklessness. 8 This standard is different from that which is customarily a part of vehicular homicide, which requires a showing of simple recklessness, often described as the willful or wanton disregard for the safety of others. 9 In exploring these serious crimes, the practitioner should keep in mind the following important point: so long as an accused is not impaired by alcohol or controlled substances, the fact that she may have consumed an alcoholic beverage or controlled substance, and even have driven her vehicle at an unlawful speed, is not necessarily sufficient evidence to sustain a conviction for DUI manslaughter See generally Chapter 2 supra. 4. See, e.g., FLA. STAT. ch (3)(c)3. (1998). Indeed, questions of whether a human being has been killed, see, e.g., People v. Selwa, 543 N.W.2d 321 (Mich. App. 1995) (jury may decide whether fetus was born alive, and therefore a human being in a negligent homicide case), and Cuellar v. State, 957 S.W.2d 134 (Tex. App. 1997) (same), and whether the defendant s conduct qualifies as criminal, see, e.g., Werhan v. State, 673 So. 2d 550 (Fla. 1st Dist. Ct. App. 1996) (defendant convicted of manslaughter for leaving vehicle parked on the interstate, which caused an accident, resulting in a fatality), are but one of the many issues presented by manslaughter cases. 5. See, e.g., FLA. STAT. ch (1975). 6. See CAL. PENAL CODE 192(c)(1). See also People v. Wells, 911 P.2d 1374 (Cal. 1996) (the offense constituting the unlawful act need not be an inherently dangerous misdemeanor or infraction; the offense need only be dangerous under the circumstances). 7. See generally BLACK S LAW DICTIONARY (5th ed.) at See W.E.B. v. State, 553 So. 2d 323 (Fla. 1st Dist. Ct. App. 1989). 9. See FLA. STAT. ch (1996) and (1994). See also State v. Yarborough, 905 P.2d 209 (N.M. App. 1995) (involuntary manslaughter cannot be based upon a violation by careless driving; conduct must be criminally negligent, reckless, willful or wanton); State v. Rowell, 467 S.E.2d 247 (S.C. App. 1995) (negligent acts only cannot sustain convictions for reckless homicide). 10. See, e.g., State v. Tagner, 673 So. 2d 57 (Fla. 4th Dist. Ct. App. 1996), reh g denied, 677 So. 2d 841 (1996) (remanding for further proceedings where evidence of cocaine level may be overly prejudicial if state s other evidence is so strong that evidence of cocaine would add little to state s 397

4 18-2(a) DRUNK DRIVING AND RELATED VEHICULAR OFFENSES 18-2(a). Causation and DUI Manslaughter. Many state statutes on DUI manslaughter declare that the defendant is guilty of committing the offense if, while under the influence of alcohol to the extent her faculties were impaired, or while she had an unlawful blood alcohol level, by the operation of a motor vehicle, she caused the death in question. 11 The question then is whether, under the interpretation of said statutes, all that is needed to prove that an accused is guilty of manslaughter by operating a motor vehicle while under the influence is that (1) a death occurred; (2) the death resulted from the operation of a vehicle by the defendant; and (3) that the defendant was under the influence of alcohol to the extent her normal faculties were impaired, or she had a blood alcohol level at or above the state s legal limit case); State v. Wieskamp, 490 N.W.2d 566 (Iowa App. 1992) (defendant s intoxication not proximate cause of accident due to fact that decedent was lying in middle of unlighted portion of highway at night in black clothing); Webber v. State, 577 A.2d 58 (Md. 1990) (no proximate cause where defendant struck drunk pedestrian who ran out in front of his vehicle); R.C.G. v. State, 362 So. 2d 166 (Fla. 1979) (juvenile driver of a motorcycle who failed to properly negotiate curve on highway, and who had been drinking alcohol prior to the accident, did not evince a reckless disregard of human life ); State v. McClain, 525 So. 2d 420 (Fla. 1988) (no abuse of discretion in exclusion of reference to trace amount of cocaine found in defendant s blood on ground of prejudicial impact on jury where amount of cocaine in blood was so small as to be non-quantifiable); People v. Gosse, 457 N.E.2d 129 (Ill. App. 1983) (reversing where evidence of a nominal amount of alcohol and cannabis without a showing that the defendant s mental or physical abilities were impaired was so inflammatory as to constitute reversible error). But cf. People v. Goslar, 1999 Cal. App. LEXIS 161 (defendant can be convicted of vehicular manslaughter based, in part, upon having a blood alcohol level of.05 or more because he was under 21 years old); Copertino v. State, 726 So. 2d 330 (Fla. 4th Dist. Ct. App. 1999) (evidence that defendant drove at grossly excessive speed at time where it was dangerous to be driving only slightly above the speed limit sufficient to demonstrate requisite reckless disregard for human life); McCreary v. State, 371 So. 2d 1024 (Fla. 1979); (fact that defendant ran visible stop sign without slowing vehicle sufficient to prove manslaughter); Filmon v. State, 336 So. 2d 586 (Fla. 1976) (alcohol consumption combined with speeding was sufficient to sustain conviction), cert. denied, 436 U.S. 980, reh g denied, 431 U.S. 960 (1977); Johnson v. State, 92 So. 2d 651 (Fla. 1957) (grossly excessive speed by motor vehicle during race on roadway sufficient to sustain conviction); High v. State, 516 So. 2d 275 (Fla. 2d 1987) (circumstances and conduct of the defendant in addition to his excessive speed sufficient to sustain conviction for manslaughter); Davison v. State,688 So. 2d 338 (Fla. 1st Dist. Ct. App. 1996) (evidence of a blood alcohol level between.063 and.089, combined with grossly excessive speed in a particularly treacherous stretch of roadway at night, was sufficient to sustain conviction); State v. Morris, 705 So. 2d 634 (Fla. 1st Dist. Ct. App. 1998) (causation established where intoxicated defendant allowed minor passenger who had no driver s license to drive vehicle, leading to fatal accident); Hamilton v. State, 696 So. 2d 914 (Fla. 2d Dist. Ct. App. 1997) (defendant properly convicted where eyewitness testimony of the driving pattern of the accident, along with other circumstantial evidence, properly provided identity of the driver). 11. See, e.g., FLA. STAT. ch (3) (1998). 398

5 MURDER, MANSLAUGHTER, ETC. 18-2(a) at the time she operated the vehicle. 12 Some statutes require neither specific intent nor causal connection between the act and the death. Moreover, in such situations, there is no burden placed upon the prosecution to prove that at the time of the incident, the defendant was negligent. Rather, the essential element of the charge is established just as long as it is demonstrated that the defendant was not, at the time of the accident, in possession of her faculties due to the use of intoxicants. 13 In most instances, the element of causation is a meaningful one derived from statutory definitions of DUI manslaughter, for it is traditionally in that context that discussions of causation arise, i.e., in situations where DUI penalties may be enhanced due to accidents involving serious bodily injury or death. In Baker v. State, 14 the Florida Supreme Court initially held that the prosecution did not have to prove proximate cause to prove DUI manslaughter. In Magaw v. State, 15 however, the Court reversed course and held that causation is a required element of the state s proof. Thus, in order to obtain a conviction for this charge, the Court held that the prosecution must prove the defendant was under the influence, and, by his operation of a motor vehicle, exhibited conduct establishing a causal connection between the driver s conduct, i.e., the operation of the vehicle, and the resulting accident which caused the victim s death See generally Baker v. State, 377 So. 2d 17 (Fla. 1979); Roddenberry v. State, 152 Fla. 197, 11 So. 2d 582 (1942); Cannon v. State, 107 So. 360 (1926); State v. Kearney, 535 So. 2d 711 (Fla. 1st Dist. Ct. App. 1988); State v. Naumowicz, 535 So. 2d 702 (Fla. 1st Dist. Ct. App. 1988). 13. Baker, 377 So. 2d at So. 2d 17 (Fla. 1979) So. 2d 564 (Fla. 1989). 16. Id. at 566 (element of causation inserted into definitions of DUI crimes which call for increased penalties due to accidents involving serious bodily injury or death). See also State v. Hamrick, 1997 Ohio App. LEXIS 5643 (conviction reversed for failure of the prosecution to prove proximate cause of the death was due to defendant s actions); Buckles v. State, 830 P.2d 702 (Wyo. 1992) (proximate causation relevant); Nugent v. State, 749 S.W.2d 595 (Tex. App. 1988) (jury should have been allowed to weigh each driver s conduct to determine if the defendant s actions were sufficient to cause the accident); State v. Wieskamp, 490 N.W.2d 566 (Iowa App. 1992) (defendant s intoxication not proximate cause of accident); Webber v. State, 577 A.2d 58 (Md. 1990) (defendant s negligence was not proximate cause of death, even though he had a blood alcohol level of 0.23%, due to fact that the victim s blood alcohol level was 0.16%, and an accident reconstruction expert testified that a sober driver in the defendant s position could not have avoided the victim). But see State v. McGill, 336 S.E.2d 90 (N.C. 1985) (conviction for involuntary manslaughter permitted where the prosecution showed a causal link between the defendant s intoxication and the subsequent death); State v. Morris, 705 So. 2d 634 (Fla. 1st Dist. Ct. App. 1998) (error to dismiss manslaughter charge on grounds that no proximate cause existed between the defendant s actions and the death where intoxicated defendant ordered reluctant, unlicensed juvenile to drive late at night, causing fatal accident). 399

6 18-2(a) DRUNK DRIVING AND RELATED VEHICULAR OFFENSES Even before Magaw, Florida s First District Court of Appeal expressly recognized that apart from the probable cause determination, the defendant must also have caused the death or serious bodily injury of a human being to obtain a DUI manslaughter conviction. 17 In many states, the concept of causation no longer imputes strict liability to the suspect. 18 The order of proof against your client, however, focuses on what may be a fairly easy element to prove. It is not that a suspect s drinking caused the accident; as held in Magaw, the prosecution need not establish the same. 19 Nor does the prosecution have to prove that the defendant was the sole cause of the fatal accident. 20 Rather, the prosecution must only demonstrate that the suspect s operation of the vehicle should have caused the accident. 21 Still, it is not enough that the defendant was involved in an accident that resulted in serious bodily injury or a death to obtain a conviction. 22 By such a statute s express provisions, the defendant must have caused the accident, and the injury or death. Thus, in cases where your client evinces no deviation or lack of care or even simple negligence that contributed to an accident, she may not be attributed any causal element. 23 It is a fine line to be drawn, indeed, but an important one that will dictate whether the defendant should be convicted Jackson v. State, 456 So. 2d 916, 918 (Fla. 1st Dist. Ct. App. 1984); State v. Adams, 558 N.W.2d 298 (Neb. 1997) (error not to inform jury that act of driving under the influence must be proximate cause of the accident). 18. Magaw, 537 So. 2d at Id. at Id. 21. Id. (emphasis added). See also Foster v. State, 603 So. 2d 1312 (Fla. 1st Dist. Ct. App. 1992) (defining causation requirement to mean that defendant must at least be negligent in the operation of the vehicle and that such negligence be a cause of the victim s death); Jordan v. State, 707 So. 2d 816 (Fla. 5th Dist. Ct. App. 1998) (same); United States v. Main, 113 F.3d 1046 (9th Cir. 1996) (jury instruction that manslaughter only required proof that the victim died as a result of an act of the defendant failed to properly address the causation element). But see State v. Thomas, 920 P.2d 927 (Idaho App. 1996) (judge s jury instruction adequately informed the jury that law required a finding that the defendant s being under the influence caused the collision). 22. See People v. Stewart, 555 N.W.2d 715 (Mich. App. 1996) (causation shown if defendant s conduct constituted a substantial cause of the accident, even if it was not the substantial cause). 23. See Baker v. State, 377 So. 2d 17 (Fla. 1979) (Boyd, J., dissenting) (recognizing that under a pre-magaw interpretation of the element of causation, an intoxicated person might be criminally liable for merely sitting at a stop light and being plowed into by another driver). And see Van Hubbard v. State, 1998 Fla. App. LEXIS 12292, rehearing granted, 1999 Fla. LEXIS 223 (Fla. 1999) (standard jury instruction involving causation and DUI manslaughter improper). 24. See State v. Benoit, 650 A.2d 1230 (R.I. 1994) (DUI causing death and serious bodily injury dismissed where no evidence showed defendant s manner of operating vehicle while intoxicated was proximate cause of accident); State v. Bartlett, 525 N.W.2d 237 (Neb. App. 1994) (reversing DWI causing serious bodily injury for court s failure to instruct jury of nexus requirement that material element of crime is defendant s act proximately caused injury); State v. Lohmeier, 556 N.W.2d

7 MURDER, MANSLAUGHTER, ETC. 18-2(b) 18-2(b). Manslaughter by Deadly Weapon. In some instances, the prosecution may allege that the defendant committed the act of manslaughter by use of a deadly weapon. This is often done to reclassify the offense as a more serious one, simply by virtue of the fact that a deadly weapon was involved. 25 Certainly an automobile may constitute a deadly weapon when it is intentionally used to inflict harm upon another human being. 26 However, is an automobile automatically a deadly weapon, especially if it is not intentionally used as such? Remember, unlike a gun or knife, an automobile is not something which is designed to be used in destroying, defeating or injuring an enemy. 27 For example, in Houck v. State, 28 the defendant was charged with seconddegree murder based upon an allegation that he killed the victim by banging the side of the victim s head against the pavement, i.e., by using a weapon, to wit, the pavement or a hard surface. 29 Upon the appeal of the reclassification of the crime based upon the defendant s use of a weapon, the court held that the legislature did not intend the reclassification statute to apply in such a situation: Here, the underlying fallacy of the State s argument is that it misconceives the legislative intent underlying the reclassification statute. The obvious legislative intent... is to provide harsher punishment for, and hopefully deter, those persons who use instruments commonly recognized as having the purpose to inflict death or serious bodily injury upon other persons. It is safe to say that the legislature did not intend to discourage the paving of parking lots. 30 (Wis. 1996) (jury instruction on contributory negligence did not deprive defendant of affirmative defense of intervening cause). 25. See, e.g., FLA. STAT. ch (1993), which reclassifies an offense as a more serious one where a deadly weapon is used. 26. See, e.g., Williamson v. State, 111 So. 124 (Fla. 1926). 27. See, e.g., State v. Del Rey, 2 Fla. L. Weekly Supp. 557, 558 (Fla. 11th Jud. Cir., Dade Cir. Ct. 1994), appeal den., 643 So. 2d 1146 (Fla. 3d Dist. Ct. App. 1994) So. 2d 180 (Fla. 5th Dist. Ct. App. 1994), aff d, 652 So. 2d 359 (Fla. 1995). 29. Id. at Id. at 184. See also United States v. Dayea, 32 F.3d 1377 (9th Cir. 1994) (because an automobile is not designed for use as a weapon, the enhancement for use of a weapon cannot be applied unless the defendant used the vehicle with an intent to injure someone with it); State v. Pogue, 851 S.W.2d 702 (Mo. 1993) (same). But cf. Tyra v. State, 868 S.W.2d 857 (Tex. App. 1993), affirmed, 897 S.W.2d 796 (Tex. 1995) (enhancement of defendant s conviction for involuntary manslaughter by accident or mistake while intoxicated upheld based on jury s finding that the defendant s car was a deadly weapon ); Roberts v. State, 766 S.W.2d 578 (Tex. App. 1989) (automobile as used by the defendant qualified as a deadly weapon where accident was caused when defendant was fleeing the police); State v. McBride, 454 S.E.2d 840 (N.C. App. 1995) (automobile properly considered a weapon under the facts of the case); Hall v. State, 935 S.W.2d 852 (Tex. App. 1996) (evidence that defendant drove at excessive speed through stop sign, causing 401

8 18-3 DRUNK DRIVING AND RELATED VEHICULAR OFFENSES Vehicular Homicide The Elements. Vehicular homicide is the killing of a human being 31 by the operation of a motor vehicle in a reckless manner likely to cause the death of, or great bodily harm to, another. 32 Such statutes requiring proof of death by the operation of a motor vehicle in a reckless manner 33 traditionally define recklessness as a willful and wanton disregard for the safety of others. 34 This means that the prosecution must prove that the defendant engaged in willful and wanton driving behavior rather than ordinary negligence. 35 fatal collision, sufficient to support jury s finding that use of truck involved the use of a deadly weapon). 31. In People v. Selwa, 543 N.W.2d 321 (Mich. App. 1995), the court held that the defendant could be tried for negligent homicide where there was a jury question as to whether the fetus that was killed was born alive. Id. at See, e.g., FLA. STAT. ch (1986). 33. McCreary v. State, 371 So. 2d 1024 (Fla. 1979) (defining statute as where the degree of negligence falls short of culpable negligence but... is more than a mere failure to use ordinary care ); Commonwealth v. Jones, 399 N.E.2d 1087 (Mass. App. 1980) (upholding defendant s conviction in spite of expert testimony that the accident was the result of the defendant s dyssomnia); Gibbs v. State, 677 N.E.2d 1106 (Ind. App. 1997) (driver s decision to continue driving at night without operative headlights on unlit roadway sufficient evidence of recklessness to support conviction for reckless homicide). See also Commonwealth v. O Hanlon, 653 A.2d 616 (Pa. 1995) (intoxication alone is insufficient to establish recklessness); State v. Esposito, 642 So. 2d 25 (Fla. 4th Dist. Ct. App. 1994) (trial court should have granted defendant s motion for judgment of acquittal on vehicular homicide charge where evidence supported no more than a finding of simple inattentiveness on the defendant s part that led to striking and killing of elderly woman crossing in pedestrian walkway); State v. Rowell, 467 S.E.2d 247 (S.C. App. 1995) (negligent acts only cannot sustain conviction for reckless homicide). 34. See, e.g., FLA. STAT. ch (1994). But see State v. Perez, 718 So. 2d 912 (Fla. 5th Dist. Ct. App. 1998), reh g. den., 1999 Fla. LEXIS 153 (verdicts of guilty of vehicular homicide and not guilty of reckless driving were not legally inconsistent). 35. See Davison v. State, 688 So. 2d 338 (Fla. 1st Dist. Ct. App. 1996) (alcohol consumption combined with excessive speed sufficient to establish conviction for manslaughter). But see State v. Johnson, 1998 Ga. LEXIS 991 (vehicular homicide prosecution based upon defendant s failure to move his vehicle from the highway after an accident quashed as predicate offense was unconstitutionally vague); W.E.B. v. State, 553 So. 2d 323 (Fla. 1st Dist. Ct. App. 1989) (evidence that juvenile drove vehicle after he had been drinking, exceeded speed limit and drove over center line, colliding with oncoming vehicle, insufficient to prove driving in a reckless manner); Ealy v. State, 616 So. 2d 531 (Fla. 1st Dist. Ct. App. 1993) (defendant s driving was not so egregious as to constitute willful and wanton behavior); Everett v. State, 454 S.E.2d 620 (Ga. App. 1995) (evidence insufficient to support conviction for vehicular homicide); State v. Klatt, 544 N.W.2d 461 (Iowa App. 1995) (reversing vehicular homicide conviction where defendant s passing in a no-passing zone not reckless without further showing); State v. Whitaker, 676 N.E.2d 1189 (Ohio App. 1996) (evidence of excessive speed, standing alone, is insufficient to establish recklessness necessary to support conviction for aggravated vehicular homicide, but is sufficient to establish vehicular 402

9 MURDER, MANSLAUGHTER, ETC. 18-3(a) 18-3(a). Causation and Vehicular Homicide. Just as with DUI manslaughter, proof of proximate cause is an essential requirement for conviction of vehicular homicide in many states. 36 And scenarios homicide). But cf. State v. Williamson, 919 S.W.2d 69 (Tenn. App. 1995) (passenger convicted of vehicular homicide for knowingly allowing his friend to operate the vehicle while impaired); State v. Gibbs, 1998 Tenn. Crim. App. LEXIS 214 (vehicular homicide properly proven by defendant s driving in excess of posted speed limit after drinking alcohol and momentarily neglecting to pay attention to adjust the radio, causing accident); Gregg v. State, 1997 Tenn. Crim. App. LEXIS 1265 (circumstantial evidence sufficient to establish vehicular homicide by intoxication); In re David P., 697 A.2d 1099 (R.I. 1997) (driving seventeen miles over speed limit in pedestrian area sufficient to support conviction); Berning v. State, 639 So. 2d 151 (Fla. 5th Dist. Ct. App. 1994) (affirming vehicular homicide conviction where defendant drove in rainy conditions on hilly two-lane road, at excessive speed, attempting to pass another vehicle in no-passing zone, resulting in head-on collision which killed another driver); Nunez v. State, 721 So. 2d 346 (Fla. 2d. Dist. Ct. App. 1998) (vehicular homicide proper where defendant ran a red light causing an accident, even though he was eluding another vehicle whose occupants were threatening him); Martinez v. State, 692 So. 2d 199 (Fla. 3d Dist. Ct. App. 1997) (evidence that the defendant was driving 70 miles per hour in a 30 mile per hour zone and passed another vehicle in a no passing zone at time of the accident sufficient to sustain conviction); Savoia v. State, 389 So. 2d 294 (Fla. 3d Dist. Ct. App. 1980) (defendant, who had been drinking, and drove his car at an excessive rate of speed, hitting a parked truck, properly convicted of vehicular homicide). And see United States v. White Skunk, 1998 U.S. App. LEXIS (fact that defendant had blood alcohol level more than twice the legal limit supported departure from sentencing guidelines). 36. See, e.g., State v. Self, 679 N.E.2d 1173 (Ohio App. 1997) (failure to stop at stop sign sufficient to establish causation); State v. Gibson, 693 So. 2d 286 (La. App. 1997) (causation shown where alcohol consumption coincides with the accident); M.C.J. v. State, 444 So. 2d 1001 (Fla. 1st Dist. Ct. App.), rev. denied, 451 So. 2d 849 (Fla. 1984); State v. Benoit, 650 A.2d 1230 (R.I. 1994) (defendant, though intoxicated, did not proximately cause fatal accident); Karl v. State, 144 So. 2d 869 (Fla. 3d Dist. Ct. App. 1962) (proximate causation is an essential requirement for the crime of vehicular homicide); Baughman v. State, 674 So. 2d 1063 (La. App.) reh g denied, 681 So. 2d 1260 (La. 1996) (evidence presented was insufficient to prove defendant s intoxication and attribute fault to him); Gabryelski v. State, 885 S.W.2d 203 (Tex. App. 1994) (causal link between defendant s intoxication and victim s death properly established); Buckles v. State, 830 P.2d 702 (Wyo. 1992) (victim s actions relevant to proximate cause elements of vehicular homicide). Not all states have required such proof, however. Compare State v. Rivas, 896 P.2d 57 (Wash. 1995) (causal connection between intoxication and death not required in vehicular homicide case); Dobson v. State, 474 S.E.2d 631 (Ga. App. 1996) (state not required to present direct evidence that defendant s impaired driving proximately caused collision in vehicular homicide case); Union v. State, 642 So. 2d 91 (Fla. 1st Dist. Ct. App. 1994) (unless it can be said that the decedent s conduct was the sole proximate cause of the homicide, or unless there is some reason why it would be unjust or unfair to impose criminal liability, decedent s conduct does not supersede defendant s conduct as proximate cause of homicide); People v. Autry, 43 Cal. Rptr. 2d 135 (Cal. App. 1995) (defendant not entitled to intervening cause jury instruction); People v. Lardie, 525 N.W.2d 504 (Mich. App. 1994) (vehicular homicide is a strict liability offense), affirmed, 551 N.W.2d 656 (Mich. 1996); Pollard v. Commonwealth, 455 S.E.2d 283 (Va. App. 1995) (victim s conduct was not the intervening cause of the accident). 403