Qualifying Predicate Traffic Violations for Purposes of Misdemeanor Death by Vehicle

Misdemeanor death by vehicle is defined in G.S. 20-141.4(a2) as (1) unintentionally causing the death of another person (2) while violating a State law or local ordinance applying to the operation or use of a vehicle or to the regulation of traffic—other than impaired driving under G.S. 20-138.1—where (3) commission of the offense is the proximate cause of the death.  (A defendant who drives while impaired and unintentionally, but proximately, causes the death of another commits the offense of felony death by vehicle in violation of G.S. 20-141.4(a1).)  As I explained here, for offenses committed on or after December 1, 2011, misdemeanor death by vehicle is an implied consent offense, rendering it subject to implied consent testing procedures.

G.S. 20-141.4(a2) broadly defines the types of traffic violations that can satisfy the second element set forth above.  I wonder, however, whether violations of traffic laws that do not involve or affect the method in which a defendant operates a vehicle can satisfy the second prong of the statute or, even if they do, can ever properly be considered the proximate cause of a death resulting from the defendant’s driving.

Consider, for example, a defendant who drives a motor vehicle on a public highway while her license is revoked in violation of G.S. 20-28(a). A deer darts in front of the defendant’s car.  The defendant, who is driving the speed limit, swerves to avoid colliding with the deer.  As she does so, she veers off the roadway and loses control of the car, colliding with a tree.  A passenger riding in the defendant’s car is killed on impact.  Has the defendant committed the offense of misdemeanor death by vehicle?

The defendant, while driving, unintentionally caused the death of another.  At the time she drove, she was violating a state law prohibiting her from driving while her license was revoked.  But for the defendant’s driving, her passenger would not have been killed.  And let’s assume that 100 yards before the deer, the defendant passed a road sign indicating that there were deer in the area, rendering foreseeable the presence of deer in the roadway.  Notwithstanding all of these factors, I’m not sure that the defendant has committed the offense of misdemeanor death by vehicle.

G.S. 20-141.4(a2)(3) requires that commission of the traffic offense (as opposed to mere operation of the vehicle) proximately cause another’s death.  Though there are no North Carolina appellate court decisions addressing this issue, it appears that for driving while license revoked to serve as predicate offense for misdemeanor death by vehicle, the revocation element of driving while license revoked must, like the driving element, cause the death. Cf. People v. Schaefer, 473 Mich. 418, 703 N.W.2d 774 (2005) (holding that legislature intended in enacting statute criminalizing driving while impaired and “by the operation of that motor vehicle causing the death of another person” that the defendant’s operation of the motor vehicle—not the defendant’s intoxicated manner of driving—cause the victim’s death).

Confronted with this issue several years ago, the Ohio Court of Appeals found it “difficult to conceive of a situation in which driving while under suspension could properly be the underlying crime in an involuntary manslaughter charge.”  State v. Jodrey, 1985 WL 6740 (Ohio Ct. App. Apr. 10, 1985) (unpublished op.). The court explained that driver’s licenses are revoked for numerous traffic offenses  of varying degrees of seriousness and for varying periods of time and that when the revocation ends, the driver generally is authorized to resume driving without any testing.  Thus, the court reasoned: “It is difficult to imagine any real difference between one’s vehicle operation skills while under suspension and immediately after the suspension is terminated. We cannot find that the driving under suspension is the proximate cause of a death that occurs when a person drives while under suspension, as reprehensible as that activity certainly is.”  Id. at *2.  In a more recent published opinion the Ohio Court of Appeals relied upon Jodrey in holding that an involuntary manslaughter conviction could not be predicated upon the misdemeanor offense of driving while under suspension since “the act of driving under suspension is not relevant to the quality of the driving, and therefore, it is not relevant to causation.” State v. DeMastry, 952 N.E.2d 1151, 1157 (Ohio App. 2011). The Ohio courts’ analysis makes sense to me.

The view that driving with a revoked license is not relevant to causation is, however, a bit hard to reconcile with the North Carolina Court of Appeals’ consideration of  prior convictions for driving while license revoked as well as commission of the act itself as among the factors that can establish malice in impaired driving cases that result in death, as discussed here and here.

Perhaps the notion that driving while license revoked cannot serve as a predicate offense for misdemeanor death by vehicle is so well-established that the issue never arises.  Perhaps not.  For enlightenment on that front, I turn to you, knowledgeable readers.

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