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.