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105.2 Hit And Run

    105.2.3 Hit And Run: Defenses And Defense Theories

    105.2.3.1 Hit And Run: Applicability Of Defense Theories Relating To Omission-To-Act Crimes
    105.2.3.2 Hit and Run: Defense Theory That Aid Was Being Adequately Provided By Another Or Was Otherwise Not Necessary
    105.2.3.3 Hit And Run: Necessity/Choice Of Evils As Defense Theory
    105.2.3.4 Hit And Run: Inability To Render Aid As Defense Theory
    105.2.3.5 Hit And Run: Defense Theory That Defendant Had No Duty To Return To The Scene Of The Accident To Render Aid
    105.2.3.6 Hit And Run: Lack Of Knowledge That Accident And/Or Injury Occurred As Defense Theory
    105.2.3.7 Hit And Run: Defense Theory That Defendant Was Not "Involved" In The Accident
    105.2.3.8 Hit And Run: Defense Theory That Duty To Supply Information Was Terminated When The Other Party Left Scene Of Accident
    105.2.3.9 Defense Theory That The Injury Was Not Caused By The Defendant’s Failure To Comply With The Hit And Run Statutes
    105.2.3.10 Hit And Run: Additional Defenses And Defense Theories

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    See FORECITE National™ Chapter 44 [Criminal Omission].

RESEARCH NOTES:

See generally, FORECITE National™ 305.8.3 [Hit and Run].

See also generally, FORECITE National™ 305.18.1 [Reckless Driving].

See also generally, FORECITE National™ 305.22.1 [Vehicular Crimes, Nonhomicide].

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RATIONALE: A person should not be subject to conviction for failure to render aid, under a hit and run statute, if the aid is already being provided by others or is otherwise unnecessary.

POINTS AND AUTHORITIES: "A statute . . . sometimes imposes a duty to act to help another in distress. Thus, it is commonly provided that a driver involved in an automobile accident must stop and render whatever assistance is necessary to others who may be injured in the accident." (LaFave & Scott, Substantive Criminal Law (West, 1986) § 3.3, p. 286; see also People v. Scheer (CA 1998) 68 CA4th 1009, 1027 [80 CR2d 676] [no duty to render aid "where such assistance by the driver is unnecessary..."]; People v. Scofield (CA 1928) 203 C 703, 708-09 [265 P 914].)

    Therefore when appropriate the jury should be instructed that there is no duty to render aid if the aid is already being provided by others or is otherwise unnecessary.

    See also FORECITE National™ Chapter 44 [Criminal Omission].

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

RESEARCH NOTES:

Annotation, Violation of Statute Requiring One Involved in an Accident to Stop and Render Aid as Affecting Civil Liability, 80 ALR 2d 299. 

See also generally, FORECITE National™ 305.8.3 [Hit and Run].

See also generally, FORECITE National™ 305.22.1 [Vehicular Crimes, Nonhomicide].

    As to the duty to render aid imposed upon drivers knowingly involved in an accident resulting in injury to another, even if aid is necessary, a driver is excused from providing such aid if it is being adequately provided by another. The law requires only that necessary assistance be rendered. A failure to provide aid which is not necessary does not subject a driver to criminal responsibility under the law. In deciding whether a driver is required to render aid, you must consider the aid and/or assistance being rendered to the injured party by others. If you have a reasonable doubt that the rendering of aid was necessary, it is your duty to give the defendant the benefit of that doubt and find that there was no duty to render aid.

[Source:FORECITE National™.]

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    105.2.3.3    Hit And Run: Necessity/Choice Of Evils As Defense Theory

RATIONALE: A person involved in a collision should be excused from the duty to stop and render aid if, considering all the circumstances the person would be risking a greater harm to himself/herself by stopping than the harm which would result to others, or the public, from not stopping.

POINTS AND AUTHORITIES: "The pressure of natural physical forces sometimes confronts a person in an emergency with a choice of two evils: either he may violate the literal terms of the criminal law and thus produce a harmful result, or he may comply with those terms and thus produce a greater or equal or lesser amount of harm. For reasons of social policy, if the harm which will result from compliance with the law is greater than that which will result from violation of it, he is by virtue of the defense of necessity justified in violating it. ... [Therefore] he who, under the pressure of the circumstances, commits what would otherwise be a crime may be justified by 'necessity' in doing as he did and so not to be guilty of the crime in question." (LaFave & Scott, Substantive Criminal Law (West, 1986) § (1) 5.4,627; see also U.S. v. Newcomb (6th Cir. 1993) 6 F3d 1129, 1131-33; State v. Stiles (OH 1998) UNPUBLISHED 1998 WL 310745 (Ohio App. 2 Dist.) [hit and run defendant was either required to stop or to prove the affirmative defense of duress or necessity to justify his failure to stop].)

    Hence, an instruction explaining the defense of necessity/choice of evils should be given when the issue involves defendant’s failure to stop (render aid) due to the existence of a greater harm.

    See also FORECITE National™ 254.2 [Necessity, Emergency, Choice Of Evils, Competing Harms].

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

RESEARCH NOTES:

See generally, FORECITE National™ 305.8.3 [Hit and Run].

See also generally, FORECITE National™ 305.22.1 [Vehicular Crimes, Nonhomicide].

    One of the issues in this case is whether the defendant failed to [stop] [render aid] out of necessity. Necessity occurs when circumstances beyond one’s control force him to commit a criminal act. The defense of necessity is available when a defendant is faced with a choice of two evils and finds himself in a position where he must violate the law because it is the lesser of two evils. A defendant who acts out of necessity must be found not guilty.

[Source:FORECITE National™.]

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    105.2.3.4    Hit And Run: Inability To Render Aid As Defense Theory

RATIONALE: Because hit and run is a crime based on an omission to act, the defendant should not be criminally liable if he or she was unable to fulfill the duties imposed by the hit and run statute.

POINTS AND AUTHORITIES: Generally, state statutes impose requirements upon a driver involved in an accident to render assistance and perform other tasks at the scene of the accident (LaFave & Scott, Substantive Criminal Law (West, 1986) § 3.3(2), p. 286.) "Just as one cannot be criminally liable on account of a bodily movement which is involuntary, so too one cannot be criminally liable for failing to do an act which he is physically incapable of performing." (LaFave & Scott, Substantive Criminal Law (West, 1986) § 3.3(6C), p. 291.) Thus, one cannot be guilty of failing to conform to a statutory requirement where he or she is unconscious or lacks mental or physical ability to perform the required act. (State v. Olson (ND 1984) 356 NW2d 110, 113; see also FORECITE National™ 44.5 [Liability Based On Omission: Requirement That Duty Be Physically Capable Of Performance].)

    For example, unconsciousness at the scene of the accident has been held to be a complete defense to a charge of hit and run. (See People v. Crouch (CA 1980) 108 CA3d Supp. 14, 21-22 [166 CR 818]; People v. Mayo (CA 1961) 194 CA2d 527, 536-37 [15 CR 366]; People v. Wallace (CA 1934) 2 CA2d 238, 244 [37 P2d 1053]; People v. Scofield (CA 1928) 203 C 703, 708-09 [265 P 914].)

    Accordingly, when appropriate, an instruction on inability to perform should be given to the jury.  (See State v. Coffey (NC 1979) 259 SE2d 356, 358.)

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

NOTE: In People v. Flores (CA 1996) 51 CA4th 1199, 1204 [59 CR2d 637] a driver rendered unconscious at the scene of the accident was required to meet the statutory duty to render aid after regaining consciousness.

RESEARCH NOTES:

See generally, FORECITE National™ 305.8.3 [Hit and Run].

See also generally, FORECITE National™ 305.22.1 [Vehicular Crimes, Nonhomicide].

    In order to find defendant guilty of failing to render aid at the scene of an accident, you must first find that defendant was capable of performing such assistance. If you have a reasonable doubt whether defendant was capable of rendering assistance due to [unconsciousness] [coercion] [_____________] you must resolve that doubt in favor of the defendant and return a verdict of not guilty.

[Source:FORECITE National™.]

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    105.2.3.5    Hit And Run: Defense Theory That Defendant Had No Duty To Return To The Scene Of The Accident To Render Aid

RATIONALE: A person who is removed from the scene of a collision while unconscious should have no duty under a hit and run statute to return to the scene when he or she regains consciousness.

POINTS AND AUTHORITIES: Typically, hit and run statutes impose duties on a driver who is involved in an accident which must be fulfilled at the scene of the accident. (See LaFave & Scott, Substantive Criminal Law (West, 1986) § 3.3(2), p. 286.)

    Therefore, when a defendant is removed from the scene of a hit and run accident, an instruction to the jury informing them that defendant has no duty to return to the scene and render aid is appropriate. (See generally FORECITE National™ Chapter 44 [Criminal Omission].)

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

RESEARCH NOTES:

See generally, FORECITE National™ 305.8.3 [Hit and Run].

See also generally, FORECITE National™ 305.22.1 [Vehicular Crimes, Nonhomicide].

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RATIONALE: Without an explanatory instruction the jury may improperly convict the defendant of hit and run based solely on the failure to stop.

POINTS AND AUTHORITIES: In accordance with typical 'hit and run' statutes, proof of defendant’s knowledge of a collision or injury or damage is required. (See e.g., State v. Baker (RI 1993) 627 A2d 835 [defendant had received severe beating and sustained head injuries prior to the accident thus precluding a finding that defendant had knowledge of the collision].) In some jurisdictions, there must be proof of defendant’s knowledge not only with respect to the collision but also with respect to the resulting injury or damage. (Wharton’s Criminal Law (West, 15th ed. 1998) § 27, p. 167; see also State v. Blevins (AZ 1981) 623 P2d 853, 857 [defendant must have actual knowledge of the personal injury or knowledge that the accident was of such a nature that a person reasonably could anticipate it resulted in personal injury]; State v. Minkel (SD 1975) 230 NW2d 233, 235; Goss v. State (TX 1979) 582 SW2d 782, 785 [charges failed to allege culpable mental state of knowledge of the occurrence of the collision]; State v. Vela (WA 1983) 673 P2d 185, 188 [knowledge of accident required, but knowledge of injuries is not required]; State v. Martin (WA 1968) 440 P2d 429, 436 [knowledge required]; SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 3-19-40 [Motor Vehicle-Hit And Run (Death Or Injury)-Elements] (State Bar of South Dakota, 2000).)

    See also FORECITE National™ 256.6.1.15 [Intoxication Or Mental Impairment: Negation Of Knowledge Element].

Annotation, Necessity And Sufficiency Of Showing In Criminal Prosecution Under "Hit-And-Run" Statute, Accused’s Knowledge Of Accident, Injury Or Damage, 26 ALR5th 1.

See also generally, FORECITE National™ 305.8.3 [Hit and Run].

See also generally, FORECITE National™ 305.22.1 [Vehicular Crimes, Nonhomicide].

    The prosecution must prove that the defendant actually knew of the injury to another or that the defendant possessed knowledge which would lead to a reasonable anticipation that such injury had occurred. Circumstantial evidence may be used to prove such knowledge.

    Consider the defendant's theory that [he] [she] did not know [an accident had occurred] [a person was injured in the accident] when deciding whether the prosecution has proven all elements of the offense beyond a reasonable doubt.

    If after consideration of all the evidence you have a reasonable doubt that the defendant knew [an accident had occurred] [a person was injured in the accident] you must return a verdict of not guilty.

[See generally Wharton’s Criminal Law (West, 15th ed. 1998) § 27, p. 167; see also State v. Baker (RI 1993) 627 A2d 835; cf. REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL), RAJI 28.6611 [Knowledge Of Injury] (CLE State Bar of Arizona, 1996).]

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RATIONALE: Without an explanatory instruction the jury may improperly convict the defendant of hit and run without finding that the defendant was involved in the accident.

POINTS AND AUTHORITIES: Whether a driver has been "involved in an accident" is a fact specific determination to be made on a case-by-case basis. (State v. Hughes (WA 1995) 907 P2d 336, 339.)

    However, there must either be physical contact between the vehicles or the defendant's vehicle must have been a cause of the accident without actually coming into contact with the other vehicle. (See Ibid.; see also generally 7A Am. Jur. 2d Automobile Insurance § 343 (1997) [Necessity of direct or actual physical contact between vehicle or part thereof and insured vehicle, person or property thereof].)

    In other words, it must be proven that the defendant was not a mere passive observer of the collision but to some extent the defendant’s vehicle was a part of the collision or the defendant's actions played a part in causing the collision or otherwise causing injury. (See e.g., Hrones & Homans, MASSACHUSETTS JURY INSTRUCTIONS - CRIMINAL 11-9 [Leaving the Scene Of An Accident After Causing Personal Injury] (Lexis, 2nd ed. 1999); see also Commonwealth v. Bleakney (MA 1932) 179 NE 400, 401 ["knowingly colliding" means "that the defendant was in some way the actor, not a mere passive participant in a collision, but to some extent causing the collision or actively colliding"].)

    Hence, when appropriate, the jury should be instructed on this requirement. (See Hrones & Homans, supra.) Furthermore, to avoid confusion, the jury should also be instructed that they must not consider the question of who, if anyone, was at fault in the collision. (Ibid.)

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

USE NOTE: As to the definition of the term "involved in an accident", see generally People v. Kerger (IL 1989) 548 NE2d 36, 38-39; State v. DuBray (SD 1980) 298 NW2d 811, 814.

RESEARCH NOTES:

See generally, FORECITE National™ 305.8.3 [Hit and Run].

See also generally, FORECITE National™ 305.22.1 [Vehicular Crimes, Nonhomicide].

SAMPLE INSTRUCTION # 1:

    It is [a] [the] defense theory that the defendant's vehicle was not [involved in] [a cause of] the [alleged] collision.  If, after consideration of all the evidence, you have a reasonable doubt that the defendant's vehicle was [involved in] [a cause of] the [alleged] collision, you must give the defendant the benefit of that doubt and return a verdict of not guilty.

[Source:FORECITE National™.]

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PRACTICE NOTE: The failure to perform a duty required by law such as leaving information at the scene of an accident does not give rise to criminal liability if it was not possible to perform the duty. (See FORECITE National™ 44.5 [Liability Based On Omission: Requirement That Duty Be Physically Capable Of Performance] and see also FORECITE National™ 44.6 [Physical Impossibility As Defense To Charge Based On Omission Of Duty Or Failure To Act ].) Therefore, if the other party has left the scene there should be no criminal liability because it is not possible to supply the information. (See State v. Teuber (WA 1978) 577 P2d 147, 151.)

RESEARCH NOTES:

See generally, FORECITE National™ 305.8.3 [Hit and Run].

See also generally, FORECITE National™ 305.22.1 [Vehicular Crimes, Nonhomicide].

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PRACTICE NOTE: The gravamen of "hit and run" offense is not initial injury of victim, but leaving scene without presenting identification or rendering aid. Hence, to be criminally liable for hit and run resulting in injury the failure of the defendant to stop and assist must have caused the injury. (See e.g., Collins v. State (GA 1984) 321 SE2d 823; see also People v. Braz (CA 1998) 65 CA4th 425, 432-33 [76 CR2d 531].) For example, a plea of guilty to that offense admits responsibility for leaving scene but not for causing injury. (See People v. Escobar (CA 1991) 235 CA3d 1504, 1509-10 [1 CR2d 579].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.8.3 [Hit and Run].

See also generally, FORECITE National™ 305.22.1 [Vehicular Crimes, Nonhomicide].

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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™ 305.8.3 [Hit and Run].

See also generally, FORECITE National™ 305.22.1 [Vehicular Crimes, Nonhomicide].