CHAPTER 18 MURDER, MANSLAUGHTER, VEHICULAR HOMICIDE, DUI WITH SERIOUS BODILY INJURY AND FELONY DUI

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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

10 18-3(a) DRUNK DRIVING AND RELATED VEHICULAR OFFENSES which you might not ordinarily expect to exonerate your client are numerous. For example, in J.A.C. v. State, 37 the defendant was involved in a drag race on a public street. During the illegal race, the victim/passenger mistakenly grabbed the steering wheel instead of the stick shift, causing the car to lose control. Florida s Third District Court of Appeal held this to be an intervening cause, in spite of the defendant s own illegal actions, precluding a conviction for vehicular homicide. 38 Similarly, in Velazquez v. State, 39 the court held that even though the defendant s participation in a drag race was a cause-in-fact of the decedent s death, under the but for test of causation, it would be unjust to hold the defendant criminally responsible for this death in that the decedent killed himself by the poor driving of his own volition. Thus, the court concluded, the defendant s conduct was not the proximate cause of the death and he could not be convicted of vehicular manslaughter. 40 Certainly, a purely legal argument does not make a death any less tragic. However, in assessing criminal liability, you must not overlook the facts if they do not establish causation. As Florida s First District Court of Appeal has definitively stated: Criminal liability does not attach when the accused is by circumstances and conditions beyond his control and against his will, placed in the position and subjected to the conditions which resulted in the death with which he is charged. [I]t does not follow, however, that every fatality, regrettable as it may be, is accompanied by and results from conduct warranting a criminal conviction... Before one can be so condemned it must be established beyond and to the exclusion of every reasonable doubt that the defendant has been guilty of negligence of the character heretofore defined So. 2d 606 (Fla. 3d Dist. Ct. App. 1979). 38. Id. at So. 2d 347 (Fla. 3d Dist. Ct. App. 1990). 40. Id. at 353. But cf. State v. Knight, 622 So. 2d 188 (Fla. 1st Dist. Ct. App. 1993) (allegations that at time of collision with victim, defendant sped through residential area in excess of twice the posted speed limit, that he had no driver s license, and that car was in poor condition, established prima facie case of vehicular homicide); Nunez v. State, 721 So. 2d 346 (Fla. 2d. Dist. Ct. App. 1998) (vehicular homicide proper where defendant ran a red light and collided with another vehicle, even though he was eluding another vehicle whose occupants were threatening him). And see Lewek v. State, 1997 Fla. App. LEXIS (fact that defendant had a suspended driver s license was irrelevant to proving that defendant knowingly drove under circumstances likely to cause death). 41. Jackson v. State, 100 So. 2d 839, 840 (Fla. 1st Dist. Ct. App. 1958). Causation has also been held to be a requirement for a leaving the scene of an accident with injuries or death charge. See State v. Yoder, 546 N.W.2d 575 (Wis.. App. 1996). 404

11 MURDER, MANSLAUGHTER, ETC. 18-4(a) DUI with Serious Bodily Injury The Elements. A DUI with serious bodily injury occurs when, by reason of the operation of a motor vehicle, serious bodily injury results. 42 Most state statutes define serious bodily injury as an injury to any person, including the driver, which consists of a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ (a). Just How Serious Must the Injury Be? As stated above, in order to qualify as serious 44 injury, most states require that a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ must have been created by the defendant s conduct. To be sure, it is oftentimes obvious that injuries so qualify. However, I frequently come across cases where attorneys have failed to consider the possibility that the police or prosecutors have overstated the extent of the injuries in order to justify more severe charges and penalties. In such instances, you must challenge whether the injuries sustained meet your state s statutory criteria. Ask the following. First, did the traffic accident create a substantial risk of death to any of the vehicles occupants? Second, did serious personal disfigurement occur? 45 And third, did any of the complainants suffer any protracted loss or impairment of the function of any bodily member or organ? 42. See, e.g., FLA. STAT. ch (3)(c)2. (1998). See also CAL. VEH. CODE 23101(a). It appears that, as is the case in most states, in DUI manslaughter and vehicular homicide cases, the serious bodily injury must have been caused by the defendant s actions. See Gerlitz v. State, 725 So. 2d 393 (Fla. 4th Dist. Ct. App. 1998) (trial court properly instructed the jury that the state was required to prove that the defendant caused or contributed to the cause of the serious bodily injury). 43. See, e.g., FLA. STAT. ch (1) (1995). See also FLORIDA STANDARD JURY INSTRUCTIONS FOR FELONY DUI SERIOUS BODILY INJURY. 44. The Random House College Dictionary ordinary usage definition of the term serious is giving cause for apprehension; critical. See RANDOM HOUSE COLLEGE DICTIONARY at 1202 (1979). 45. See, e.g., Gillman v. Gillman, 319 So. 2d 165, 166 (Fla. 1st Dist. Ct. App. 1975) (defining disfigurement in civil context as that which impairs or injures the beauty, symmetry or appearance of a person or thing; or that renders unsightly, misshapen, or imperfect, or deformed in some manner, but going on to hold that [w]e do not imply that every scar is a disfigurement ); Bethlehem-Sparrows Point Shipyard v. Damasiewicz, 50 A.2d 799 (Md. App. 1947) (discussing the definition of disfigurement from a workman s compensation standpoint); Branham v. Denny Roll & Panel Company, 25 S.E.2d 865 (N.C. 1943) (defining disfigurement as a blemish, a blot, a scar or a mutilation that is external and observable, marring the appearance ); Keef v. State, 469 S.E.2d 318 (Ga. App. 1996) (serious disfigurement proven by evidence of two-inch scar was a jury question); Keef v. State, 469 S.E.2d 318 (Ga. App. 1996) (serious bodily injury proven by proof of broken collar bone and broken pelvic bone). 405

12 18-4(a) DRUNK DRIVING AND RELATED VEHICULAR OFFENSES Although precedents defining what constitutes serious personal disfigurement under such statutes are sparse, a case from Hawaii s highest court is illustrative of the point. In State v. Malufau, 46 Hawaii s Supreme Court was called upon to determine whether the complainant s injuries an approximately two-inch scar on his forehead which was visible from a normal social distance, 47 constituted a serious bodily injury under Hawaiian law. 48 This statute defined serious bodily injury as that which creates a substantial risk of death or which causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. 49 The Court held as follows: We recognize that some scars would certainly not qualify as serious bodily injury under the statutory definition... A small but noticeable scar... does not constitute the element of serious, permanent disfigurement required under [Hawaiian law]... [and is a] far cry from a large, permanent scar on a person s face from the corner of the eye to the jaw. 50 In State v. Hill, 51 the Washington Court of Appeals was asked to define Washington Revised Code (2), which provided that serious bodily injury means bodily injury which involves a substantial risk of death, serious permanent disfigurement, or protracted loss or impairment of the function of any part or organ of the body. 52 In Hill, a passenger in the other vehicle sustained lacerations to her face including a 4-inch-long L-shaped laceration to her forehead, a deep puncture wound to her inner thigh, a gash on her right ankle, a sprained toe and major chest contusions. 53 She even sustained permanent scars from these injuries. 54 In affirming the conviction, the court found that the injuries sustained were indeed within the definition of the statute P.2d 612 (Haw. 1995). 47. Id. 48. HAW. REV. STAT (1993) P.2d at 614, n Id. at Compare State v. Yamashiro, 817 P.2d 123, 125 (Haw. 1991), overruled in part by Malufau, 906 P.2d at 617 (Haw. 1995) (upholding injuries as serious where complainant suffered extensive facial injuries, including two fractures of his left cheek bone and one to his right,... numerous loose, broken, or displaced teeth and multiple fractures to his lower jawbone that had exposed the root of his right eyetooth, requiring the extraction of seven or eight teeth, and where the sense of feeling had never returned to the left side of his face so that he could neither tell if his nose was running or eat hard foods ) P.2d 707 (Wash. App. 1987). 52. Id. at Id. 54. Id. 55. Id. 406

13 18-5. DUI and Murder Charges. MURDER, MANSLAUGHTER, ETC In some DUI cases where a death or deaths have occurred, the prosecution has attempted to file murder charges as opposed to the customary manslaughter charges. This usually occurs when the accused is alleged to have been severely intoxicated, or, in one case I defended, driving the wrong way on a bridge. However, in almost every situation, murder indictments for such offenses are clearly overcharged and come about more in response to political pressures than sound legal principles. 56 In Duckett v. State, 57 the defendant was charged and convicted of five counts of second-degree murder arising from a car accident in which the defendant was highly intoxicated. 58 Evidence adduced at trial showed that he had been speeding and weaving in and out of traffic for several miles, almost causing two other accidents along the way. 59 He eventually ran off the interstate and onto the grass, striking a disabled church bus, and killing five people. 60 In addressing the validity of the convictions, the appellate court first noted that second-degree murder requires proof the defendant s actions were an act imminently dangerous to another and evincing a depraved mind regardless of human life. 61 However, in precluding the defendant s conviction under this criteria, the court further defined this term as requiring that the murder be done from ill will, hatred, spite, or an evil intent, and... is of such a nature that the act itself indicates an indifference to human life. 62 Thus, in reducing the murder charges to manslaughter, the court found that [t]he facts in this case do not constitute second-degree murder because there was no evidence offered at trial to support the fact that Duckett s act was done from ill will, hatred, spite, or an evil intent toward the victims That is not to say that a DUI murder prosecution is not possible. See United States v. Chippewa, 1998 U.S. App. LEXIS 5458 (defendant could be convicted for second degree murder for alcohol related accident where defendant showed extreme indifference to human life by ignoring two stop signs while driving while intoxicated). See also Manis v. State, 528 So. 2d 1342 (Fla. 2d Dist. Ct. App. 1988), review denied, 534 So. 2d 400 (Fla. 1988); State v. Gordon, 478 So. 2d 1063 (Fla. 1985) So. 2d 662 (Fla. 2d Dist. Ct. App. 1996). 58. Id. 59. Id. 60. Id. 61. Id., citing to FLORIDA STANDARD JURY INSTRUCTION Duckett v. State, 686 So. 2d 662 (Fla. 2d Dist. Ct. App. 1996). See also People v. Goecke, 547 N.W.2d 338 (Mich. App. 1996) (intoxication, speeding and running a red light do not demonstrate malice required to sustain second-degree murder conviction). 63. Duckett, 686 So. 2d at 663. See also State v. Ellison, 561 So. 2d 576 (Fla. 1990) (high-speed chase with police, causing death of an infant, not second-degree murder); People v. Baker, 551 N.W.2d 195 (Mich. App. 1996) (driving miles per hour and running a stop sign while drunk did not support second-degree murder conviction); State v. Kelly, 1998 Tenn. Crim. App. LEXIS 407

14 18-6 DRUNK DRIVING AND RELATED VEHICULAR OFFENSES Felony DUI. While DUI is traditionally prosecuted as a misdemeanor crime absent serious bodily injury or death 64 a defendant may find herself charged with felony DUI simply because of her prior DUI convictions. In many states, a defendant with three previous DUI convictions arrested for her fourth, or higher, may, at the state s discretion, be prosecuted as a felon. 65 In states such as Florida, the law unambiguously provides that [a]ny person who is convicted of a fourth or subsequent violation of subsection (1) [DUI] is guilty of a felony of the third degree. 66 The question whether the prior convictions comprise an element of the felony crime is an important one. In many states, the combination of the three or more prior DUI convictions is an element of the substantive offense of felony DUI. 67 By the state s having to allege the specific prior DUI convictions in the charging document, the defendant is given fair notice of the allegation against her (insufficient evidence to support conviction for second degree murder as state failed to prove that the defendant was aware that the conduct was reasonably certain to cause death); Collins v. State, 707 So. 2d 821 (Fla. 3d. Dist. Ct. App. 1998) (defendant, who was passenger in car fleeing the scene of a robbery, could not be convicted of second degree felony murder). And cf. State v. Reid, 476 S.E.2d 695 (S.C. 1996) (error for prosecution to produce evidence of defendant s postarrest silence and lack of remorse following crash to help prove the issue of malice). 64. For a discussion of DUI with serious bodily injury or death, see supra, this chapter. 65. See, e.g., FLA. STAT. ch (2)(b) (1998). Of course, the state may choose to forgo the felony charge and proceed with the DUI charge as a misdemeanor alone. See Toledo v. State, 580 So. 2d 335 (Fla. 3d Dist. Ct. App. 1991). 66. See, e.g., FLA. STAT. ch (2)(b) (1998); FLA. R. CRIM. P (d)(1) (1993). 67. See, e.g., State v. Rodriguez, 575 So. 2d 1262 (Fla. 1991); Page v. State, 607 So. 2d 1163 (Miss. 1992); State v. Allen, 506 N.E.2d 199 (Ohio 1987) (prior conviction is essential element when used to raise degree of offense, but not an element when used merely to enhance penalty). Not all states so hold, however. See State v. Anaya, 933 P.2d 223 (N.M. 1997) (proof of prior convictions not element of felony DWI and serves instead to change the classification of a criminal act that is now and has been a misdemeanor into a felony for sentencing purposes only); State v. Campa, 814 P.2d 749 (Ariz. 1991). And in one Texas case, where the prior convictions were deemed an essential element for sentencing enhancement only, and not jurisdictional, the legislature properly authorized the state, in reading the indictment at the guilt/innocence phase of the trial, to inform the jury of the prior convictions themselves. See Addington v. State, 730 S.W.2d 788 (Tex. App. 1987). 68. State v. Rodriguez, 575 So. 2d at 1266 ( To protect the right to fair notice guaranteed by article I, sections 9 and 16 of the Florida Constitution, we conclude that the state must allege the specific DUI convictions in the charging document ). Still, even if this essential element is not pleaded, the felony court nevertheless has jurisdiction. Id. at Thus, the state s failure to plead the allegation is subject to the harmless error rule. See Hope v. State, 588 So. 2d 255 (Fla. 5th Dist. Ct. App. 1991). 408

15 MURDER, MANSLAUGHTER, ETC Because the allegation is an essential element of the crime, it must be noticed and proved beyond a reasonable doubt. 69 Recognizing, however, that a defendant s presumption of innocence might be compromised if jurors deliberating on a single DUI charge became aware of either allegations or proof of prior convictions, due process prevents the jury from being advised of the prior convictions as an element of the new charge. 70 Therefore, the trial court must protect the defendant s presumption of innocence by withholding from the jury any allegations or facts about the alleged prior DUI offenses. 71 Subsequently, in order to prove the prior convictions as an essential element of the crime, without compromising the defendant s presumption of innocence, 72 the trial court is to conduct the trial solely as to the single DUI at issue. 73 If the jury returns a guilty verdict, the court must conduct a separate proceeding to determine whether the defendant was convicted on three or more prior occasions. 74 At this hearing, the state s evidence must be presented and the defendant permitted to challenge the evidence, cross-examine witnesses, and present rebuttal until the prior convictions are proven beyond a reasonable doubt. 75 Then the felony conviction may be entered. 76 You may expect the state to submit a certified copy of the defendant s driving record, as well as court records, in order to establish the prior convictions. Some courts have held that there is a presumption of validity that attaches to final judgments, and the burden of proof to overcome that presumption rests on the 69. State v. Rodriguez, 575 So. 2d at See also Eskridge v. State, 1997 Ala. Crim. App. LEXIS 368 (felony indictment void where it failed to allege prior DUI convictions). 70. Accord Shargaa v. State, 102 So. 2d 809 (Fla. 1958) (presumption of innocence is destroyed when jurors learn of previous convictions for unrelated offenses), cert. denied, 358 U.S. 873 (1958). 71. State v. Rodriguez, 575 So. 2d at For example, if the information or indictment is to be provided to the jurors upon deliberation, it must be redacted so the forbidden portions are excised from view. For that matter, a defendant should not permit the court to refer to the prosecution as one for a felony DUI, thereby tipping the jurors off that the case is more serious than a plain misdemeanor. See Shafer v. State, 583 So. 2d 417 (Fla. 5th Dist. Ct. App. 1991). 72. This assumes, of course, that the defendant elects to be tried by a jury. 73. State v. Rodriguez, 575 So. 2d at Id. And cf. Harbaugh v. State, 711 So. 2d 77 (Fla. 4th Dist. Ct. App. 1998) (request to have jury determine existence of prior convictions does not amount to a waiver of the bifurcated process of guilt determination being made first, and then the existence of prior convictions thereafter). 75. For a discussion of the validity of using uncounseled prior convictions to enhance a defendant s sentence, see 20-4, infra. 76. State v. Rodriguez, 575 So. 2d at And see Ross v. State, 950 P.2d 587 (Alaska App. 1997) (existence of prior convictions is an element of felony DWI, and must be decided by a jury in a bifurcated trial). Compare State v. Harris, 356 So. 2d 315, 317 (Fla. 1978) (upon conviction for felony petit larceny, the court shall, in a separate proceeding, determine the historical fact of prior convictions and questions regarding identity in accord with general principles of law). 409

16 18-6 DRUNK DRIVING AND RELATED VEHICULAR OFFENSES defendant. 77 However, the recent wave of bureaucratic incompetence (is this recent, or just that the courts are more aware of the fact that it exists) has caused a crack in this presumption. 78 However, even in jurisdictions which still adhere to the presumption that electronic records are valid, that the presumption is rebuttable in such instances may be small consolation, but once the defendant has made such a showing, the burden then shifts back to the State to produce direct evidence and prove by a preponderance of the evidence that the prior convictions were not entered in violation of the defendant s rights See, e.g., Parke v. Raley, 506 U.S. 20, (1992); State v. Perry, 938 P.2d 1325 (Mont. 1997); State v. Stubblefield, 940 P.2d 444 (Mont. 1997). And see State v. Inzina, 1998 La. App. LEXIS 3503 (proper to prove defendant s prior convictions by use of bills of information and fingerprint cards). 78. State v. Pellicane, 729 So. 2d 534 (Fla. 3d. Dist. Ct. App. 1999) (computerized driving record and electronic docket information were insufficient to satisfy the prosecution s burden of proving the defendant s prior convictions); Mosqueda v. State, 936 S.W. 714 (Tex. App. 1996) (probation orders were insufficient to prove prior predicate offenses for felony DWI offense); Zimmer v. State, 1998 Tex. App. LEXIS 7412 (evidence insufficient to prove prior conviction for felony DWI prosecution where the judgment of conviction did not contain the defendant s fingerprint or signature). 79. State v. Perry, 938 P.2d at See also State v. Jenni, 938 P.2d 1318 (Mont. 1997) (by producing affidavits alleging he was neither represented by an attorney nor advised that a courtappointed attorney would be provided for him, defendant satisfied burden and shifted to state the burden of proving the constitutional validity of prior convictions); State v. Okland, 941 P.2d 431 (Mont. 1997) (defendant produced evidence that prior conviction violated his constitutional rights). But see 20-4, infra, concerning the use of prior uncounseled convictions. 410