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92.5 Vehicular Manslaughter

    92.5.3 Vehicular Manslaughter: Defenses And Defense Theories

    92.5.3.1 Vehicular Manslaughter: Defense Theory That Careless Driving Is Insufficient
    92.5.3.2 Defense Theory That Gross Negligence Requires More Than Violation Of A Traffic Law
    92.5.3.3 Vehicular Manslaughter: Defense Theory That Imminent Peril Affects The Standard Of Care Which The Defendant Must Exercise
    92.5.3.4 Vehicular Manslaughter While Intoxicated: Lack Of Causal Relationship Between Intoxication And Death Of Victim As Defense Theory
    92.5.3.5 Gross Negligence: Defense Theory That Defendant Did Not Have Knowledge Of The Risks Of Drinking And Driving
    92.5.3.6 Vehicular Manslaughter: Mental, Medical Or Physical Impairment Of Defendant
    92.5.3.7 Vehicular Manslaughter: Causation Requirement And Defenses Thereto
    92.5.3.8 Vehicular Manslaughter: Additional Defenses And Defense Theories

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    92.5.3.1    Vehicular Manslaughter: Defense Theory That Careless Driving Is Insufficient

PRACTICE NOTE: Because involuntary manslaughter requires a showing of at least criminal negligence, "careless driving" which only requires ordinary negligence cannot be a predicate for involuntary manslaughter. (See LaFave & Scott, Substantive Criminal Law § 7.13, fn. 37 (West, 1986).)

    See also FORECITE National™ 92.4.2.3 [Involuntary Manslaughter: Challenge To "Misdemeanor Manslaughter" Rule].

    See also FORECITE National™ 53.2 [Negligence May Not Be Presumed From Violation Of Traffic Safety Statute].

RESEARCH NOTES:

See generally, FORECITE National™ 305.22.2 [Vehicular Homicide].

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    92.5.3.2    Defense Theory That Gross Negligence Requires More Than Violation Of A Traffic Law

RATIONALE: Because criminal liability for a homicide should require more than simple negligence, the jury should be instructed that violation of a traffic law which normally includes only simple negligence, is not sufficient alone to establish the commission of a homicide.

POINTS AND AUTHORITIES: In People v. Wells (CA 1996) 12 C4th 979, 990 fn 8 [50 CR2d 699], the court noted that Sample Instruction # 1, below, helped to "ensure[] that the jury necessarily found all elements of vehicular manslaughter in returning its verdict." (See also People v. Bennett (CA 1991) 54 C3d 1032, 1039 [2 CR2d 8] [gross negligence requires more than the "mere fact that a defendant drives a motor vehicle while under the influence of alcohol and violates a traffic law..."]; People v. McNiece (CA 1986) 181 CA3d 1048, 1058 [226 CR 733]; People v. McCoy (MI 1997) 566 NW2d 667, 670 [violation of speed limit, by itself, is not adequate to establish element of gross negligence in prosecution for involuntary manslaughter or felonious driving; however, under certain circumstances, violation of speed limit can be gross negligence]; People v. Lardie (MI 1996) 551 NW2d 656, 667; State v. Miller (MN 1991) 471 NW2d 380, 383 [though objective standard used, requisite gross negligence in operating vehicle not established by defendant's failure to comply with statute on inspection of brakes]; see also FORECITE National™ 53.4 [Unconstitutional To Infer Recklessness From Speeding].)

    See FORECITE National™ 65.3.1 [Serious Felony Liability Based On Negligence Violates Fundamental Common Law Principles].

    See FORECITE National™ 92.1.4 [Constitutional Challenge To Criminal Liability For Homicide Based On Simple Negligence].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.22.2 [Vehicular Homicide].

SAMPLE INSTRUCTION # 1:

    The mere fact that a defendant drives a motor vehicle and violates a traffic law does not alone constitute gross negligence. You must decide, from the overall circumstances of the manner in which defendant drove, whether [his] [her] conduct constituted gross negligence.

[Source: FORECITE National™.]

SAMPLE INSTRUCTION # 2:

    The mere fact that a defendant drove a motor vehicle while under the influence of alcohol and violated a traffic law is insufficient in itself to constitute gross negligence. You must decide whether gross negligence has been proven from all the evidence including the level of the defendant's intoxication, the manner of driving, and/or other relevant aspects of the defendant's conduct resulting in the fatal accident.

[See generally People v. Wells (CA 1996) 12 C4th 979, 990 fn 8 [50 CR2d 699]; People v. Bennett (CA 1991) 54 C3d 1032, 1039 [2 CR2d 8]; see also CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.94 [Jury To Consider Overall Circumstances–Drive and Intoxication] (West, 6th Ed. 1996).]

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    92.5.3.3    Vehicular Manslaughter: Defense Theory That Imminent Peril Affects The Standard Of Care Which The Defendant Must Exercise

RATIONALE: Without an explanatory instruction the jury may not understand that "imminent peril" should be considered in deciding whether the defendant was grossly negligent.

POINTS AND AUTHORITIES: In a vehicular manslaughter case an instruction on imminent peril should be given upon request when supported by the evidence. (See People v. Clark (CA 1962) 202 CA2d 513, 518 [20 CR 803]; People v. Boulware (CA 1940) 41 CA2d 268, 270 [106 P2d 436].) However, there is no sua sponte duty to give such an instruction. (See People v. Wren (CA 1969) 271 CA2d 788, 792-93 [76 CR 673].)

    See also FORECITE National™ 253.4.9.2 [Self Defense: Prior Acts Of Violence Or Character Of Alleged Victim As Relevant To Reasonableness Of Defendant's Response].

    See also FORECITE National™ 48.1.6 [Reasonable Person Standard: Perfect Judgment Not Required].

    See also FORECITE National™ 48.1.7 [Reasonable Person Standard: Consideration Of Circumstances From Defendant’s Perspective].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

RESEARCH NOTES:

Annotation, Homicide By Automobile As Murder, 21 ALR3d 116.

See also generally, FORECITE National™ 305.22.2 [Vehicular Homicide].

SAMPLE INSTRUCTION # 1:

See instruction quoted in People v. Clark (1962) 202 CA2d 513, 518 [CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.92 [Vehicle Manslaughter–Effect Of Imminent Peril] West, 6th Ed. 1996)].

SAMPLE INSTRUCTION # 2:

    When a driver is suddenly and without fault on his part confronted with an emergency, he may __________________<<insert action taken e.g., swerve to the opposite lane of the highway>> without being guilty of an act forbidden by law if the action taken by the driver was, or appeared to be, the safest course to follow under the circumstances and was what a reasonably prudent person would do under the circumstances. If the defense relies on such a theory it is the prosecution’s burden to disprove it beyond a reasonable doubt.

[See People v. Clark (1962) 202 CA2d 513, 518.]

SAMPLE INSTRUCTION 3:

    One who in a sudden emergency acts according to his or her best judgment, or who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence. If the defense relies on such a theory it is the prosecution’s burden to disprove it beyond a reasonable doubt.

[Jolley v. Clemens (1938) 28 CA2d 55, 68; see also People v. Clark (1962) 202 CA2d 513, 518.] 

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    92.5.3.4    Vehicular Manslaughter While Intoxicated: Lack Of Causal Relationship Between Intoxication And Death Of Victim As Defense Theory

RATIONALE: Without an explanatory instruction the jury may not understand that there must be a causal relationship between the defendant's intoxication and the death of the victim.

POINTS AND AUTHORITIES: It has been recognized that the "alcohol influence" must be a causal factor in the death of the victim to support a vehicular homicide charge. (State v. Taylor (LA 1985) 463 So2d 1274, 1275; see also State v. Heft (WI 1994) 517 NW2d 494, 498 [state need not prove that driver’s intoxication proximately caused death, only that there exists causal connection between defendant’s driving while intoxicated and death]; Commonwealth v. Shoup (PA 1993) 620 A2d 15, 18; MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 4:17.11 [Homicide By Motor Vehicle While Intoxicated] (Micpel, 1999).)

    For example, in South Carolina the death or injury must be caused by a separate act or neglect of duty which was a result of the defendant being under the influence while driving. (Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS II(A) inst. 2 [Felony DUI-Vehicle] page 104 (South Carolina CLE, 1994).)

    However, in Washington there must be a causal connection between the defendant’s intoxicated condition and the victim’s death, was specifically rejected by a 1991 statutory amendment. (See State v. Rivas (WA 1995) 896 P2d 57, 61; see also State v. MacMaster (WA 1989) 778 P2d 1037, 1040.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.22.2 [Vehicular Homicide].

SAMPLE INSTRUCTION:

    To convict defendant of driving under the influence of alcohol, the prosecution must prove beyond a reasonable doubt that as a result of being under the influence, defendant committed an unlawful act or neglected a duty imposed by law.  This requires the prosecution to prove beyond a reasonable doubt that the unlawful act or neglected duty was caused by the impairment of abilities resulting from alcohol and/or drugs.

    The prosecution must further prove beyond a reasonable doubt that the defendant's act or neglect proximately* caused great bodily injury or death to the victims.

* But see FORECITE National™ 55.12 [The Term "Proximate" Is Unduly Confusing].

[Cf. Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS II A Inst 2 ["Felony DUI -- Vehicle"] p. 104 (South Carolina CLE, 1994).]

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    92.5.3.5    Gross Negligence: Defense Theory That Defendant Did Not Have Knowledge Of The Risks Of Drinking And Driving

RATIONALE: The defendant has a federal constitutional right to have the jury consider evidence which may negate an element of the offense. Hence, the jury should consider what the defendant knew, including whether he was aware of the risks.

POINTS AND AUTHORITIES: People v. Bennett (CA 1991) 54 C3d 1032, 1038-40 [2 CR2d 8] created a "totality of the circumstances" standard for the determination of gross negligence: "The jury should, therefore, consider all relevant circumstances, including level of intoxication, to determine if the defendant acted with a conscious disregard of the consequences rather than with mere inadvertence. [Citations.]" (Id. at 1038; see also Jones v. Foutch (NE 1979) 278 NW2d 572, 576 [whether gross negligence exists must be ascertained from facts and circumstances of each particular case and not from any fixed definition or rule]; Demont v. Mattson (NE 1972) 196 NW2d 190, 194 [whether a particular act or omission may be termed gross depends upon all the facts and circumstances]; Montague v. State (MD 1968) 237 A2d 816, 818 [whether or not defendant accused of manslaughter by automobile operated motor vehicle in a "grossly negligent" manner requires consideration of all factors].) Hence, even though Bennett characterized the standard as "objective" (Bennett, 54 C3d at 1036), the jury must determine "whether a reasonable person in the defendant's position would have been aware of the risk...." [Original emphasis.] (People v. Ochoa (CA 1993) 6 C4th 1199, 1205 [26 CR2d 23].) In making such a determination "the jury should be given relevant facts as to what defendant knew, including his actual awareness of those risks." (Ibid.; see also Ochoa, 6 C4th at 1211, dissenting opinion [recognizing "serious" due process problems if defendant is denied the right to present evidence that he was not subjectively aware].)

    See also FORECITE National™ 250.1.4 [Constitutional Rights To Due Process, Trial By Jury And Compulsory Process As Grounds For Defense Theory Instruction].

    See also FORECITE National™ 300.6.2 [Right To Present A Defense: Due Process, Compulsory Process And Confrontation].)

    See also FORECITE National™ 52.3 [Gross Negligence: Objective Test].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.22.2 [Vehicular Homicide].

SAMPLE INSTRUCTION:

    In making the determination of gross negligence, you must* consider all factors relevant to the defendant's subjective state of mind such as whether, at the time [he] [she] was driving, the defendant had knowledge of the risks of drinking and driving.

* See FORECITE National™ 16.3.1 [Jury Must Consider All Of The Evidence].

[Source: FORECITE National™.]

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    92.5.3.6   Vehicular Manslaughter: Mental, Medical Or Physical Impairment Of Defendant

    See FORECITE National™ 256.7 [Mental, Medical Or Physical Impairment Of Defendant].

RESEARCH NOTES:

See generally, FORECITE National™ 305.22.2 [Vehicular Homicide].

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    92.5.3.7    Vehicular Manslaughter: Causation Requirement And Defenses Thereto

    See FORECITE National™ Chapter 55 [Causation].

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    92.5.3.8    Vehicular Manslaughter: Additional Defenses And Defense Theories

PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)

RESEARCH NOTES:

See generally, FORECITE National™ 305.22.2 [Vehicular Homicide].