by Adam Hersh
Every day millions of people travel Florida roadways, and when a driver unintentionally kills another person the criminal justice system is often called upon to determine culpability. It may be difficult to decide, however, exactly which crime a driver has committed. Indeed, judges, prosecutors, defense attorneys, and juries frequently struggle with whether a motor vehicle homicide constitutes a criminal act at all.1
The purpose of this article is to discuss the three most common motor vehicle homicide charges: manslaughter by culpable negligence, vehicular homicide, and DUI manslaughter.2 While they often appear to overlap, each has unique properties practitioners should be aware of to represent most effectively their client, be it a defendant or the State of Florida.
Manslaughter by culpable negligence, a second degree felony,3 involves the killing of a human being where the defendant engages in:
a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare or the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.4
While manslaughter by culpable negligence may be committed in a variety of contexts,5 motor vehicle examples include killing an infant passenger when the defendant was fleeing from law enforcement and lost control of the car;6 causing the death of a person after attempting to demonstrate the acceleration of a car on a wet highway and consequently losing control;7 and killing a child pedestrian after the defendant had been drinking alcohol, boasted of the car’s speed, spun the wheels, accelerated along a narrow street, and shifted around in his seat before striking the child.8
Contrasted to manslaughter by culpable negligence is vehicular homicide, a third-degree felony, which is “the killing of a human being by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another.”9 The “reckless manner” portion of this statute has been interpreted to mean the state must prove not just simple negligence, but “willful or wanton disregard for safety,” the standard for reckless driving.10 Examples of vehicular homicide include killing a bicyclist after the defendant weaved in and out of traffic, disregarded a yellow traffic signal, and accelerated through a red light;11 killing a driver in an oncoming lane after the defendant sped in the rain on a hilly two-lane road and attempted to pass another vehicle in a no-passing zone;12 and killing a five-year-old child pedestrian when the defendant drove 50-60 mph in a posted 30 mph zone with no obstructions in the driver’s way in a residential area with many children and a “Slow—Children Playing” sign. The driver also failed to reduce her speed before or after the collision.1
If death occurs when a defendant drives under the influence to the extent normal faculties are impaired or with an unlawful blood or breath alcohol level, the driver may be guilty of DUI manslaughter. This second-degree felony occurs when a DUI defendant, by reason of operating a motor vehicle, “causes . . . [t]he death of any human being.”14 Unlike vehicular homicide, which requires willful or wanton behavior to convict, the state only needs to show simple negligence in a DUI manslaughter prosecution.15 Examples include killing another driver after the defendant, under the influence of Demerol, drove her van into the victim’s station wagon;16 killing another driver after the defendant, under the influence of alcohol, ran a red light at a high rate of speed and struck the victim’s car in an intersection;17 and killing the driver of an oncoming vehicle after the defendant, with a blood alcohol level of 0.20, turned his vehicle directly in front of the victim’s automobile.18
Varying Degrees of Negligence
One of the most important distinctions among manslaughter by culpable negligence, vehicular homicide, and DUI manslaughter is that each has a different threshold of negligence. Culpable negligence is the highest standard,19 while vehicular homicide contains the middle standard of recklessness or willful or wanton disregard for safety,20 and DUI manslaughter contains the lowest standard—simple negligence.21 In McCreary v. State, 371 So. 2d 1024,1026 (Fla. 1979), the Florida Supreme Court noted that vehicular homicide is properly viewed as a helpful link in cases “where the degree of negligence falls short of culpable negligence but where the degree of negligence is more than a mere failure to use ordinary care.” In Magaw v. State, 537 So. 2d 564 (Fla. 1989), the Florida Supreme Court stated that in DUI manslaughter prosecutions:
[T]he state is not required to prove that the operator’s drinking caused the accident. The statute requires only that the operation of the vehicle should have caused the accident. Therefore, any deviation or lack of care on the part of a driver under the influence to which the fatal accident can be attributed will suffice.22
In light of these three standards of proof, prosecutors should carefully analyze traffic homicides before filing charges for manslaughter by culpable negligence. Courts on numerous occasions have concluded a defendant did not commit manslaughter where, for example, death results only from excessive speed,23 faulty brakes,24 commission of traffic infractions,25 or running a stop sign.26 Culpable negligence prosecutions are fact-intensive, and the totality of circumstances govern whether the charge is appropriate.27
Where more than one factor exists, such as excessive speed combined with driving on the wrong side of the road or in a school zone when children are crossing, the case for manslaughter strengthens.28 If a defendant is under the influence, DUI manslaughter may be the wiser course for prosecution as it requires a lesser degree of negligence than manslaughter by culpable negligence. However, in cases where alcohol is one of many factors but impairment would be difficult to show, the state may wish to charge manslaughter by culpable negligence and use alcohol consumption as one of several elements showing the higher standard of misconduct.29
Double Jeopardy and
Vehicular homicide, a third-degree felony, is a permissive lesser included offense of the second-degree felonies of DUI manslaughter and manslaughter by culpable negligence.30 While reckless driving is a lesser offense of vehicular homicide,31 a requested instruction for reckless driving need not be given where it is undisputed that a death has occurred as a result of the accident.32 Where DUI manslaughter is alleged, driving under the influence is a necessarily included lesser offense such that a defendant cannot be convicted of both arising out of a single accident.33
In what has been called the “one death/one conviction rule,” the Florida Supreme Court has concluded that double jeopardy principles allow only one homicide conviction for a single death.34 Thus, in Houser v. State, 474 So. 2d 1193 (Fla.1985), the court stated a defendant could not be convicted and sentenced for both vehicular homicide and manslaughter by driving while intoxicated (the predecessor to DUI manslaughter) where one person was killed. This principle was reaffirmed in Chapman v. State, 625 So. 2d 838 (Fla. 1993), in which the court concluded the defendant could not be convicted of DUI manslaughter and vehicular homicide stemming from the death of one person.
The results in Houser and Chapman are intriguing in light of F.S. §775.021, which provides the rules of construction for the Florida Criminal Code.35 These rules allow separate punishment for separate offenses even if they are committed during a single criminal episode.36 Offenses are separate “if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.”37 Vehicular homicide and DUI manslaughter require different standards of negligence, and DUI manslaughter requires a separate element that the defendant drove with an unlawful blood or breath alcohol level or to the extent normal faculties were impaired.38
The different elements of these crimes also satisfy the standard set forth in Blockburger v. United States, 284 U.S. 299 (1932), which asks whether each offense contains an element contained in the other. If the offenses have the same elements, then double jeopardy bars additional punishment; if they do not have the same elements, then prosecution under the different statutes may proceed.39 Because of the different elements of proof, multiple convictions for a single motor vehicle homicide may be permitted one day in Florida. Indeed, a number of states have already moved in that direction.40 The Florida Supreme Court has recently endorsed multiple convictions in a variety of other criminal contexts, indicating the court may revisit earlier restrictions in motor vehicle homicide cases.41
Close case analysis is required to determine whether a driver has committed a criminal homicide offense. Even if drug or alcohol consumption is a factor, additional circumstances often must exist to separate an inexplicable highway tragedy from one with criminal recourse. By bringing together a thorough understanding of the facts, statutes, and case law, parties can work toward the ultimate resolution of justice. q
1 See, e.g., Behn v. State, 621 So. 2d 534 (Fla. 1st D.C.A. 1993); Velazquez v. State, 561 So. 2d 347 (Fla. 3d D.C.A.), rev. denied, 570 So. 2d 1306 (Fla. 1990); W.E.B. v. State, 553 So. 2d 323 (Fla. 1st D.C.A. 1989); Brown v. State, 511 So. 2d 1116 (Fla. 2d D.C.A. 1987); Peel v. State, 291 So. 2d 226 (Fla. 1st D.C.A.), cert. denied, 298 So. 2d 164 (Fla. 1974); Woodward v. State, 274 So. 2d 246 (Fla. 1st D.C.A. 1973); Scarborough v. State, 188 So. 2d 877 (Fla. 2d D.C.A. 1966); Jackson v. State, 100 So. 2d 839 (Fla. 1st D.C.A. 1958).
2 This article does not focus on cases where a driver intentionally strikes another with a motor vehicle or otherwise uses a motor vehicle to purposely cause death. Those situations would warrant murder charges, independent of statutory provisions regarding the operation of motor vehicles. See Fla. Stat. §782.04 (1995).
3 Fla. Stat. §782.07 (1995).
4 Fla. Std. Jury Instr. (Criminal) (1996); see also McCreary v. State, 371 So. 2d 1024 (Fla. 1979); Ellison v. State, 547 So. 2d 1003 (Fla. 1st D.C.A. 1989), quashed in part on other grounds, 561 So. 2d 576 (Fla. 1990).
5 See, e.g., Nozza v. State, 288 So. 2d 560 (Fla. 3d D.C.A.) (defendant allowed child to die of malnutrition), cert. denied, 295 So. 2d 301 (Fla. 1974); State v. Bailey, 508 So. 2d 1268 (Fla. 4th D.C.A.) (defendant showed gun to victim when gun fired and killed victim), rev. denied, 518 So. 2d 1273 (Fla. 1987).
6 State v. Ellison, 561 So. 2d 576 (Fla. 1990).
7 Phillips v. State, 289 So. 2d 769 (Fla. 2d D.C.A. 1974).
8 State v. Redden, 269 So. 2d 415 (Fla. 2d D.C.A. 1975).
9 Fla. Stat. §782.071(1) (1995).
10 W.E.B. v. State, 553 So. 2d 323 (Fla. 1st D.C.A. 1989); State v. Esposito, 642 So. 2d 25 (Fla. 4th D.C.A. 1994); see also Fla. Stat. §316.192(1) (1995) (reckless driving). “Willful” means “intentionally, knowingly and purposefully.” Fla. Std. Jury Instr. (Criminal) (1996).
11 Moye v. State, 571 So. 2d 113 (Fla. 4th D.C.A. 1990).
12 Berning v. State, 639 So. 2d 151 (Fla. 5th D.C.A. 1994).
13 Hamilton v. State, 439 So. 2d 238 (Fla. 1983).
14 Fla. Stat. §316.193(3)3 (1995).
15 Magaw v. State, 537 So. 2d 564 (Fla. 1989); State v. Altamura, 676 So. 2d 29, 30 (Fla. 2d D.C.A. 1996) (“[I]n order to satisfy the causation element of DUI manslaughter, the state was required to prove only simple negligence in the operation of a vehicle.”); Collins v. State, 605 So. 2d 568, 569 (Fla. 5th D.C.A. 1992).
16 State v. May, 670 So. 2d 1002 (Fla. 2d D.C.A.), rev. denied, 676 So. 2d 1368 (Fla. 1996).
17 Collins v. State, 605 So. 2d 568 (Fla. 5th D.C.A. 1992).
18 Melvin v. State, 677 So. 2d 1317 (Fla. 4th D.C.A. 1996).
19 McCreary v. State, 371 So. 2d 1024 (Fla. 1979).
20 W.E.B. v. State, 553 So. 2d 323 (Fla. 1st D.C.A. 1989); State v. Esposito, 642 So. 2d 25 (Fla. 4th D.C.A. 1994); see also Fla. Stat. §316.192(1) (1995) (reckless driving). “Willful” means “intentionally, knowingly and purposefully.” Fla. Std. Jury Instr. (Criminal) (1996).
21 Magaw v. State, 537 So. 2d 564 (Fla. 1989); State v. Altamura, 676 So. 2d 29, 30 (Fla. 2d D.C.A. 1996) (“[I]n order to satisfy the causation element of DUI manslaughter, the state was required to prove only simple negligence in the operation of a vehicle.”); Collins v. State, 605 So. 2d 568, 569 (Fla. 5th D.C.A. 1992).
22 Magaw, 537 So. 2d at 567 (emphasis added).
23 Smith v. State, 65 So. 2d 303 (Fla. 1953).
24 Behn v. State, 621 So. 2d 535 (Fla. 1st D.C.A. 1993).
25 Logan v. State, 592 So. 2d 295 (Fla. 5th D.C.A. 1991), cause dismissed, 599 So. 2d 656 (Fla. 1992).
26 Peel v. State, 291 So. 2d 226 (Fla. 1st D.C.A.), cert. denied, 298 So. 2d 164 (Fla. 1974).
27 Filmon v. State, 336 So. 2d 586 (Fla. 1976), cert. denied, 430 U.S. 980 (1977).
28 See, e.g., Taylor v. State, 46 So. 2d 725 (Fla. 1950); Smith v. State, 65 So. 2d 303 (Fla. 1953); Johnson v. State, 92 So. 2d 651 (Fla. 1957).
29 See, e.g., Werhan v. State, 673 So. 2d 550 (Fla. 1st D.C.A. 1996); State v. Redden, 269 So. 2d 415 (Fla. 2d D.C.A. 1975).
30 McCreary v. State, 371 So. 2d 1024 (Fla. 1979); State v. Chapman, 625 So. 2d 838 (Fla. 1993); see also State v. Altamura, 676 So. 2d 29 (Fla. 2d D.C.A. 1996); Kurtz v. State, 564 So. 2d 519 (Fla. 2d D.C.A. 1990); State v. Armstrong, 547 So. 2d 1293 (Fla. 5th D.C.A. 1989).
31 Chikitus v. Shands, 373 So. 2d 904 (Fla. 1979).
32 State v. Barritt, 531 So. 2d 338 (Fla. 1988).
33 Kurtz v. State, 564 So. 2d 519 (Fla. 2d D.C.A. 1990).
34 Where more than one person is killed or injured, however, multiple convictions will stand. Melborne v. State, 679 So. 2d 759, 765 (Fla. 1996) (“[M]ultiple convictions can arise from a single violation of the DUI statute where injury [or death] results to several persons.”); see also State v. Salazar, 679 So. 2d 1183 (Fla. 1996).
35 See Fla. Stat. §775.021 (1995).
36 See Fla. Stat. §775.021(4)(a) (1995).
38 See supra notes 19-22. If a defendant pleads guilty or no contest (as opposed to being found guilty at trial) to more than one homicide offense stemming from a single death, then the defendant waives double jeopardy objections. Novaton v. State, 634 So. 2d 607 (Fla. 1994); Melvin v. State, 645 So. 2d 448 (Fla. 1994); Mandelbaum v. State, 676 So. 2d 510 (Fla. 4th D.C.A. 1996).
39 Id.; see also United States v. Dixon, 113 S. Ct. 2849, 2860 (1993) (overruling Grady v. Corbin, 495 U.S. 508 (1990); noting that the Blockburger test is the appropriate standard for double jeopardy analysis).
40 See State v. Poirier, 458 A.2d 1109, 1111 (Vt. 1983) (holding that a defendant may be convicted of both manslaughter and driving under the influence with a fatal accident, even though only one death occurred); People v. Baker, 551 N.W.2d 195, 197-98 (Mich. App. 1996) (holding that the statute defining operating a vehicle under the influence causing death does not restrict prosecutors from charging a defendant with whatever homicide charge is warranted; “Thus, prosecutors are free to charge a defendant with both homicide and [DUI] causing death.”); State v. Potts, 491 A.2d 818, 822 (N.J. Super. L. 1985); Commonwealth v. Pigg, 571 A.2d 438, 446 (Pa. Super.) (“Because each and every element of homicide by vehicle while driving under the influence is not necessarily an element of third-degree murder [Pennsylvania’s residual homicide offense, like manslaughter in Florida], we conclude that the crimes do not merge for sentencing purposes.”), appeal denied, 581 A.2d 571 (Pa. 1990); see also State v. Wolske, 420 N.W.2d 60, 63 (Wis. App. 1988) (holding that a defendant may be charged, convicted, and punished for both homicide by intoxicated operation of a motorboat and homicide by highly negligent operation arising out of the same incident), rev. denied, 422 N.W.2d 861 (Wis. 1988), cert. denied, 488 U.S. 1010 (1989); Cf. State v. Wissing, 528 N.W.2d 561, 567 (Iowa 1995) (holding that separate convictions for vehicular homicide and involuntary manslaughter do not constitute double jeopardy, but a defendant may be sentenced on only one of the offenses when they arise out of one homicide); State v. Chippendale, 556 N.E.2d 1134, 1136 (Ohio 1990) (holding that a defendant may be tried and convicted for both aggravated vehicular homicide and involuntary manslaughter, but sentenced for only one where one homicide occurred).
41 See, e.g., Allen v. State, 684 So. 2d 819 (Fla. 1996) (a defendant may be separately convicted and sentenced for armed burglary, armed robbery, and armed kidnapping where each offense was part of the same criminal episode); Gaber v. State, 684 So. 2d 189 (Fla. 1996) (separate convictions and sentences for armed burglary and grand theft of a firearm arising from same criminal episode did not violate double jeopardy principals); Maxwell v. State, 682 So. 2d 83 (Fla. 1996) (separate convictions and sentences for carrying a concealed firearm, possession of a short-barreled shotgun, and possession of a firearm by convicted felon did not violate double jeopardy protections although the offenses arose from a single episode); Boler v. State, 678 So. 2d 319 (Fla. 1996) (double jeopardy does not bar a conviction and sentence for both felony murder and the qualifying felony); Johnson v. State, 676 So. 2d 408 (Fla. 1996) (a defendant may properly be convicted of aggravated stalking where he had previously been convicted of contempt for violating an injunction based on the same conduct).
Adam Hersh is a felony division prosecutor for Florida’s Second Judicial Circuit. In 1992 he earned a Bachelor of Arts degree from the University of Texas at Austin, and in 1995 he earned a Juris Doctor degree from Florida State University College of Law.
This column is submitted on behalf of the Criminal Law Section, Claire K. Luten, chair, and Randy E. Merrill, editor.