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State Doesn’t Have to Prove Ordinary Negligence in Washington Vehicular Homicide or Vehicular Assault

The prosecution is generally required to prove some level of intent, or mens rea, to succeed in obtaining a guilty verdict in a criminal case.  Some offenses, however, are strict liability offenses, meaning the prosecution does not have to prove intent.  A Washington appeals court recently considered whether the vehicular homicide and vehicular assault statutes require the prosecution to prove a mens rea of ordinary negligence in the case of driving under the influence.

car crashIn a recent case, the defendant appealed convictions for vehicular homicide and vehicular assault, arguing the jury instructions were erroneous because they allowed the jury to find her guilty without a finding of ordinary negligence.

According to the opinion, the defendant’s truck spun out on an icy bridge, slid off the road, and hit two people who were investigating an accident scene.  One man died, and the other was seriously injured.   The officers restrained the defendant and had blood drawn at the hospital.  The tests revealed a blood alcohol concentration of .09.

The defendant was charged with vehicular homicide and vehicular assault.  One element of the to-convict jury instructions for each of the charges required the defendant to be driving a motor vehicle while under the influence of intoxicating liquor or drugs, in a reckless manner, or with disregard for the safety of others.  There was no required mental element included in the instructions if the basis for the guilty verdict was driving under the influence.   The defendant did not object to the instructions or propose alternatives.

The jury found the defendant guilty of vehicular homicide and vehicular assault.  The jury found in special verdicts that the defendant had driven under the influence but had not driven recklessly.  The jury did not reach an agreement regarding whether she drove with disregard for the safety of others.  The defendant appealed.

The appeals court identified the fundamental question as whether vehicular homicide and vehicular assault committed under the influence require the state to prove ordinary negligence.  The court first looked at the language of the statutes.  In each, the subsection related to driving under the influence did not include ordinary negligence or any mens rea, but the other subsections required recklessness or disregard for the safety of others.  The appeals court then looked to the legislative history and prior case law.

The appeals court found the previous version of the vehicular homicide statute, RCW 46.61.520, was “substantively identical to the current language, though organized differently.”  There was no record of the reason for the change in organization. One previous state Supreme Court opinion held the state was required to prove that impairment due to alcohol was a proximate cause of the death to avoid imposing strict liability, even though it was not required under the plain language of the statute.  There were two appeals court opinions holding that the state must prove ordinary negligence in addition to proving the defendant was under the influence.  The appeals court disagreed, however, that the state Supreme Court case upon which those decisions were based required that result.

After the vehicular homicide statute was amended, the state Supreme Court again considered the proximate cause issue in State v. Rivas, noting the prior court had not provided support or analysis for finding that strict liability must be avoided.  There was nothing in the statute that expressly required that the intoxication proximately cause the death.  The Supreme Court held that the statute does not require proof of a causal connection between intoxication and death.   The state cited Rivas as controlling, but the appeals court noted that it did not hold vehicular homicide was a strict liability crime.  The legislative history and case law did not resolve the ambiguity in the vehicular homicide statute.

The court performed a similar review of the vehicular assault statute, RCW 46.61.522.  The legislature had specifically distinguished vehicular assault from negligent driving in the first degree while considering amending the statute in 2001.  The negligent driving statute requires that there was negligent operation of the vehicle and that the driver exhibited the effects of alcohol or drugs.  The record showed that the legislature knew how to define an offense requiring both negligence and intoxication.

The 2001 amendment removed the requirement of proximate causation, meaning the current statute requires only actual causation.  The legislative report noted that changing causation brought the vehicular assault statute in line with the vehicular homicide statute.

There was conflicting case law as to whether the prior statute required a showing of negligence.  In State v. Lovelace, an appeals court found the state must prove ordinary negligence and intoxication to show proximate cause.  The appeals court in the present case noted that the legislature may have expressed its disapproval of Lovelace by amending the statute to remove proximate cause.   There has been some limited case law addressing the issue since the amendments, but the appeals court found that the legislative history and case law did not resolve the ambiguity.

If an examination of statutory language, legislative history, and case law cannot resolve a question of whether a statute imposes strict liability, a Washington court should consider the factors set forth in State v. Bash.  These factors relate to legislative intent.

The first factor is whether there is a common law antecedent.  The appeals court found no common law antecedents for the statutes in question and therefore determined that this factor did not help clarify legislative intent.

The second factor is whether the crime is a “public welfare offense.”  The court found that the crimes in question had some characteristics of a public welfare offense but other characteristics suggesting otherwise.  The court found the factor did not weigh in favor of either side.

The third factor is the extent to which imposing strict liability would encompass seemingly innocent conduct.   The appeals court noted that driving under the influence is rarely innocent behavior.  The court also noted it may encompass some seemingly innocent behavior if there were no proximate cause requirement.  The vehicular homicide statute requires that the death be proximately caused by the defendant.   The vehicular assault statute does not expressly require proximate cause, but it does require that the defendant “cause substantial bodily harm.”  Applying a reading of the word “cause” in criminal statutes set forth in a previous state Supreme Court case, the appeals court case found the vehicular assault statute also required proximate cause.   This factor weighed in favor of applying strict liability.

The fourth factor considers the harshness of the penalty.  If a penalty is severe, it is more likely the legislature intended a finding of fault to be required.  The court found that, with penalties possibly reaching decades of prison time, the harshness of the penalty weighed against strict liability for vehicular homicide.  Although the penalties for vehicular assault are not as severe, the appeals court found they were also harsh enough to weigh against imposing strict liability.

The fifth factor is the potential for harm to the public.  The court found the potential for harm to the public was great.  Additionally, it found both statutes were part of a statutory scheme to harshly penalize and deter driving under the influence.  This factor weighed in favor of imposing strict liability for both statutes.

The sixth factor is the difficulty in ascertaining the facts.  The court found there should not be difficulty in ascertaining the facts and weighed this factor in favor of strict liability for both statutes.

The last two factors are the difficulty of proving fault and the number of prosecutions expected.  The court found little in the record to support findings as to these factors and did not weigh them in favor of either position.

The appeals court noted the difficulty in balancing the factors here but found they ultimately weighed in favor of imposing strict liability.  The trial court did not err in instructing the jury it could convict the defendant without a finding of ordinary negligence.  The court affirmed the defendant’s conviction.

Pursuant to this case, the state does not have to prove ordinary negligence to obtain a conviction of vehicular homicide or vehicular assault.  If you are facing charges related to driving under the influence, you need an experienced Seattle DUI defense attorney who understands Washington law.  Contact Blair & Kim, PLLC by phone at (206) 622-6562 or through our website to discuss your case.

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