Last week, in a blurb about the Traffic Justice Summit, I said that the law was easier on homicides committed with a car than on other methods. According to correspondent Scott T., that’s not the case:
The threshold for being convicted of a crime by killing someone with a car is lower than the threshold for killing someone without a car.
If you kill someone with a car, you can be convicted of vehicular homicide if you’re intoxicated, reckless, or driving “with disregard for the safety of others.” 46.61.520(1). Assuming you’re not intoxicated, “disregard for the safety of others” is the lowest threshold for negligence homicide…
Vehicular Homicide is a Class A felony, and Second Degree Manslaughter is a Class B felony, a less serious crime.
Full text of Scott’s email is below, but the blog “Communications from Elsewhere” has an even more in depth analysis, albeit one that doesn’t come to any firm conclusions. There’s some doubt that “disregard” is in practice the lowest threshold, but also:
But it seems to me that the people who are arguing against a new law on the grounds that we have existing laws which cover this situation may have a point… Under my plain reading of the RCW, hitting someone with a car counts as assaulting them with a deadly weapon…
Well, there’s a problem. The jury instructions define assault as requiring intent. So here is a place we could focus efforts to change how the law is interpreted… If we can change the jury instruction so that “assault with a deadly weapon” doesn’t necessarily require intent, then it seems like anyone who hits someone else with their car, under any circumstances, could be charged with assault in the second degree. This is obviously overkill, but we rely on prosecutorial discretion to mitigate overly broad laws in other cases. Why not rely on it here, too?
City Attorney Tom Carr did not return a request for comment, but Cascade Bicycle Club Advocacy Director David Hiller (who makes no claims to be a lawyer) says:
The analysis you forwarded does raise questions for me.One is, if the current laws are applicable – why aren’t the counties prosecuting? Of the 500 we track annually, there are an average of 260 cases each year where the crash is solely the responsibility of a motorist committing and infraction, and the outcome is death or disability for a bicyclist or pedestrian. Absent alcohol, none of these have merited charges under the existing laws. FWIW, Satterberg’s office is telling us the burden is too difficult to meet and it requires knowing the driver’s intent. It’s possible that every single county prosecutor in Washington is weak kneed and that the author of the email you sent is correct… but I can’t find any evidence to support that theory.
Perhaps the problem here is the practical difficulty of proving such “disregard?”
Regardless of the practical problems, the throwaway comment I made in the original post obscures a lot of legal uncertainty and I regret the error. The full text of Scott T.’s email is below the jump. All the words below are his, except where he’s quoting:
*************
I wanted to correct a misstatement in your blog post about the Traffic Justice Summit. Here’s what you said:
This evening, in the Bertha Knight Landes Room of Seattle’s City Hall, the Cascade Bicycle Club is hosting a Traffic Justice Summit to discuss potential changes to the law that currently states that negligent manslaughter homicide due to negligence is a serious crime — unless you happen to commit it with a motor vehicle.
This is not correct. The threshold for being convicted of a crime by killing someone with a car is lower than the threshold for killing someone without a car.
If you kill someone with a car, you can be convicted of vehicular homicide if you’re intoxicated, reckless, or driving “with disregard for the safety of others.” 46.61.520(1). Assuming you’re not intoxicated, “disregard for the safety of others” is the lowest threshold for negligence homicide. Here’s how it’s defined in the jury instructions:
“With disregard for the safety of others” means as follows: “Disregard for the safety of others means an aggravated kind of negligence or carelessness, falling short of recklessness but constituting a more serious dereliction than ordinary negligence. Ordinary negligence is the failure to exercise ordinary care. Ordinary negligence is the doing of some act which a reasonably careful person would not do under the same or similar circumstances or the failure to do something which a reasonably careful person would have done under the same or similar circumstances. Ordinary negligence in operating a motor vehicle does not render a person guilty of vehicular homicide.” WPIC 90.05.
If you kill someone by some means other than driving, the least-serious crime you’re likely to be charged with is Second Degree Manslaughter, which is a less serious crime than Vehicular Manslaughter: “A person is guilty of manslaughter in the second degree when, with criminal negligence, he causes the death of another person.” RCW 9A.32.070(1). Here’s how “criminal negligence” is defined in the jury instructions:
A person is criminally negligent or acts with criminal negligence when he or she fails to be aware of a substantial risk that the death of another may occur and this failure constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation. WPIC 10.04.
In other words, (1) the “criminal negligence” you need to be convicted of a non-driving homicide is a higher, harder-to-prove standard than the “disregard for the safety of others”/”aggravated kind of negligence” you need to be convicted of a driving (and non-alcohol-related) homicide, and (2) Vehicular Homicide is a Class A felony, and Second Degree Manslaughter is a Class B felony, a less serious crime.
Scott’s correct in theory. In practice though, how many of those are proecuted using the current statute? My guess is, nearly none.
Well, you have two options, here. One is to do some further research into the matter. The other is to make a snarky comment.
How nice that we both chose the same thing!
Seattle Likes bikes has two good posts on this.
http://seattlelikesbikes.org/wordpress/?p=136
http://seattlelikesbikes.org/wordpress/?p=133
And someone else trying to figure out what the law means just like us.
http://www.elsewhere.org/journal/archives/2009/10/16/traffic-justice/
Adam,
The last link is the second source I cite.
Ah thanks. I read the post before that was added.
I have read several documents including the RCW and WPIC in relation to this and honestly I still don’t understand what the law is, especially when comparing the relative thresholds of the laws.
Its easy enough to copy and paste the RCW and WPIC, but it seams this give us just enough knowledge to be dangerous, but not enough to actually understand the complexities of the law, especially when it is necessary to prove gross or aggravated negligence.
If there are any lawyers out there that have experience with these types of cases please contact me. None of us at STB are lawyers and we would like profession input on this issue.
Even if vehicular homicide is a higher class of crime than manslaughter 2º, the sentencing guidelines are the same so long as there are no drugs involved: 21 to 27 months. If a drug is involved, it jumps up to 31 to 41 months, which is the same as robbery 1º (robbery with a weapon, though no one need be hurt). Manslaughter 1º, recklessly causing the death of a person, gets 78-102 months.
As people have pointed out repeatedly, the issue probably isn’t a lack of laws, it’s a lack of application or proper interpretation thereof. If no one’s being prosecuted, and those who are are getting off with a slap on the wrist, then something’s broken, regardless of what class of felony is involved.
Agreed, but often when the executive and judicial branches of government are not applying the law as intended (as appears to be the case here) the legislature takes action to clarify the intent of the law or to mandate that it be interpreted and enforced in a certain way. For example, mandatory minimums, 3 strikes you’re out, etc. Not that I am a fan of either of those policies, but it is not unprecedented for the legislature to act when laws are not being enforced properly.
STB, thank you for posting the correction — very much appreciated.
A few responses to Hiller’s comments, below:
“The analysis you forwarded does raise questions for me. One is, if the current laws are applicable – why aren’t the counties prosecuting? Of the 500 we track annually, there are an average of 260 cases each year where the crash is solely the responsibility of a motorist committing and infraction, and the outcome is death or disability for a bicyclist or pedestrian. Absent alcohol, none of these have merited charges under the existing laws. FWIW, Satterberg’s office is telling us the burden is too difficult to meet and it requires knowing the driver’s intent. It’s possible that every single county prosecutor in Washington is weak kneed and that the author of the email you sent is correct… but I can’t find any evidence to support that theory.”
My first question is what Hiller means by “where the crash is solely the responsibility of a motorist.” Usually, this sort of determination is made as part of a civil jury trial when someone injured in an accident sues the driver who hit him for damages. Washington law (RCW 4.22.070) allows civil juries to apportion percentages of fault the any parties they believe are responsible. So in a bike-car case where the car ran a red light and hit a bike, the jury might find the driver 100% responsible. But what if the biker ran the red light, but the car was speeding and could probably have avoided the accident had it been going the speed limit. Then maybe the jury splits the fault 50-50. You can imagine lots of other scenarios where a jury might find one party entirely at fault or split fault allocation between a bike and a car. My guess is that Hiller isn’t referring to cases tried to verdict, because most cases settle long before they get to that stage.
Moving back to criminal law, the “aggravated negligence” standard for vehicular assault/homicide certainly requires a standard higher than mere “fault” or even “ordinary negligence,” but it doesn’t require recklessness. Negligence, unlike recklessness, doesn’t typically require a showing of the person’s state of mind. I haven’t done research on the types of cases charged under this standard, so I’m not quite sure how it’s applied practically, but you should remember that in the end the jury hears the facts, gets the jury instruction, and then decides whether the defendant is guilty or innocent. So if you’re trying to figure out whether the “aggravated negligence”/”disregard for the safety of others” standard would apply to a particular case, imagine a jury hearing a bunch of evidence about what happened, being given a copy of the jury instruction I quoted in my email, deliberating, and reaching a verdict. That’s a simplified version of how it works. Jurors are regular people, so they’re not better at understanding and applying the standard than you are.
As for why felony prosecutors don’t tend to charge non-alcohol vehicular assault/manslaughter cases, I can’t answer that. But if it’s an enforcement problem, not a law problem, then working to change the enforcement is usually a better approach than working to change the law.
Oh, and one clarification re “Communications from Elsewhere”: Regular assault (not involving a car, completely different crime) requires intent; vehicular assault does not. The definitions are different. If I’m drunk and accidentally stumble into someone walking down the street, that’s not assault. But if I’m drunk and accidentally hit someone with my car, that’s vehicular assault (assuming they’re seriously injured). The only way I’d see assault with a car counting as “regular” assault is if you deliberately ran someone over with your car (might also be attempted murder).
“Well, there’s a problem. The jury instructions define assault as requiring intent. So here is a place we could focus efforts to change how the law is interpreted… If we can change the jury instruction so that “assault with a deadly weapon” doesn’t necessarily require intent, then it seems like anyone who hits someone else with their car, under any circumstances, could be charged with assault in the second degree. This is obviously overkill, but we rely on prosecutorial discretion to mitigate overly broad laws in other cases. Why not rely on it here, too?”
Because… intent is a core element of “assault.”
Much better to write a criminal statute that addresses the specific crime you’re trying to prevent, instead of fundamentally changing – and wildly broadening – a long-established criminal law term of art.
And you can’t just change jury instructions; instructions reflect the RCW’s, for criminal law.
“Much better to write a criminal statute that addresses the specific crime you’re trying to prevent, instead of fundamentally changing – and wildly broadening – a long-established criminal law term of art.”
zxcv, you’re dead on. This is why the cell phone law refers pretty specifically to wireless communication devices.
I don’t think my initial comment was snarky. I just think that outcomes are more important than how the statute could theoretically be applied.
Scott writes that “if it’s an enforcement problem, not a law problem, then working to change the enforcement is usually a better approach than working to change the law.”
I’m not sure he’s made it clear that it’s not a law problem. If the prosecutors are saying the test is too high for vehicular assault, we could either hire new prosecutors or hire a lobbyist to create a law that is easy for the prosecutors to apply.
Zxcv, there is no intent requirement for vehicular assault; that’s clear from the statute and the jury instructions. It’s a completely separate crime from the “standard” types of assault, which do require intent. You are correct that we can’t change the jury instructions; those are derived from court decisions interpreting the statutes.
Kurisu, it’s quite clear from the current law in Washington that you can be convicted of vehicular assault or manslaughter without being reckless. If we’re going to criminalize traffic infractions/ordinary negligence, and not just the “aggravated negligence” that is currently criminalized, I would be interested to hear an explanation of the charging problems with the current law directly from the King County Prosecuting Attorney’s office (not second-hand through David Hiller or Tom Carr), and so far I haven’t seen one. Would be interested to see STB ask Dan Satterberg’s office for his views on this issue.