In 2014, 1,284 people were killed in traffic accidents in North Carolina. Most of those people were occupants in a passenger car, though motor vehicle crashes also claimed the lives of 172 pedestrians, 190 motorcyclists and 19 bicyclists. Seventy percent of the fatalities resulted from crashes that did not involve an alcohol-impaired driver. While it is fairly easy to determine the appropriate criminal charge when a person drives while impaired and proximately causes the death of another, it is less obvious what the appropriate charge is when a driver’s violation of another type of traffic statute proximately causes someone else’s death.
Tag Archives: death by vehicle
Most impaired drivers arrive at their destinations without harming themselves or anyone else. And few such drivers are actually stopped by police. That may explain why eight percent of people nationwide who were over 16 years old reported riding in a vehicle with a driver they thought may have consumed too much alcohol to drive safely. Young adult males were even more likely to engage in this behavior, with 24 percent of men aged 21 to 24 reporting having done so in the past year.
Though most impaired drivers don’t crash, newspapers are replete with tales of those who do, often with tragic consequences. Four hundred and two people died in alcohol-impaired driving fatalities in North Carolina in 2012. Nationwide that year, more than 10,000 people were killed in crashes involving an impaired driver—31 percent of the total traffic fatalities for the year. Impaired drivers themselves are killed most often in such crashes, comprising 65 percent of the deaths in 2012, with passengers in their vehicles a distant second, making up 16 percent of the deaths. Occupants of other vehicles accounted for 11 percent of fatalities.
When a person drives while impaired in North Carolina and proximately causes the death of another, the person may be charged with one or more felony offenses, including second-degree murder, aggravated felony death by vehicle, felony death by vehicle, and involuntary manslaughter as well as misdemeanor impaired driving. In 2013, 23 charges of aggravated felony death by vehicle and 130 charges of felony death by vehicle were filed in North Carolina.
Questions often arise at sentencing regarding whether a person may be separately punished for multiple felony convictions when each is based upon the defendant’s driving while impaired and causing the death of a single other person, as well as the underlying crime of misdemeanor DWI.
Below are the rules governing sentencing for such convictions.
Second degree murder. When a person is convicted of second degree murder based upon driving while impaired, the court must arrest judgment for a conviction of involuntary manslaughter, aggravated felony death by vehicle or felony death by vehicle based on the same incident and the same death. The person may not be sentenced for involuntary manslaughter because the offense is a lesser-included offense of second degree murder, and the legislature has not sanctioned cumulative punishment for such offenses. The person may not be sentenced for aggravated felony death by vehicle or felony death by vehicle, both Class D felonies, because the governing statute, G.S. 20-141.4(b), authorizes punishment under that statute “unless the conduct is covered under some other provision of law providing greater punishment.” State v. Davis, 364 N.C. 297, 304 (2010). Thus, punishment may be imposed for the greater offense of second-degree murder, a Class B2 felony in this circumstance, but not the lesser offenses of aggravated felony death by vehicle or felony death by vehicle. In addition to imposing a sentence for second-degree murder in such cases, the court may sentence the defendant for the underlying misdemeanor DWI, which is an offense with elements distinct from those required to support a conviction for second-degree murder.
Felony death by vehicle. If a person is convicted of aggravated felony death by vehicle or felony death by vehicle (both Class D felonies, though the former conviction must be punished in the aggravated range) and involuntary manslaughter based upon a single incident of driving while impaired that results in the death of another, the court must sentence the defendant pursuant to G.S. 20-141.4 and may not impose a sentence for involuntary manslaughter based on the same death. Instead, the court must arrest judgment for the conviction for involuntary manslaughter, a Class F felony, which merges into the conviction of felony death by vehicle. State v. Lopez, 363 N.C. 535, 536, 681 S.E.2d 271, 272 (2009).
The court may not impose a sentence for a conviction of misdemeanor impaired driving based on the same incident either, since it is a lesser included offense of both aggravated felony death by vehicle and felony death by vehicle, and is not an offense for which the legislature has not authorized cumulative punishment.
Similar sentencing questions arise in less serious cases when person is convicted of several misdemeanor offenses arising from a single incident of impaired driving, such as impaired driving under G.S. 20-138.1, impaired driving in a commercial motor vehicle under G.S. 20-138.2, or driving after consuming by a person under 21 under G.S. 20-138.3.
Impaired driving in a commercial motor vehicle. When a person is convicted of misdemeanor impaired driving and impaired driving in a commercial motor vehicle based on a single incident of driving, the person must be sentenced for both offenses but the aggregate punishment imposed by the court may not exceed the maximum punishment applicable to the offense involving impaired driving under G.S 20-138.1.
Driving after consuming. Driving by a person under 21 years old after consuming alcohol in violation of G.S. 20-138.3 is not a lesser included offense of impaired driving under G.S. 20-138.1. Thus, a person convicted of G.S. 20-138.3 (a Class 2 misdemeanor) and an offense involving impaired driving based on a single incident of driving may be sentenced for both offenses. The aggregate punishment imposed by the court, however, may not exceed the maximum applicable to the offense involving impaired driving.
General Deterrence. Those are the rules for dealing with compounded punishment for a compounded crime. It is difficult to know their general deterrent effect. And general—rather than specific—deterrence seems the appropriate focus as most drivers involved in fatal impaired driving crashes do not have a previous DWI conviction—at least not in the recent past as measured by the federal government. The National Highway Traffic Safety Administration reported in December 2013 that 93 percent of the drivers involved in fatal crashes had no previous DWI convictions, based on Fatality Analysis Reporting System data that reports DWI convictions occurring up to three years before the date of the crash.
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.
G.S. 20-141.4 sets forth six offenses based upon the unlawful killing or injuring of another during the commission of a motor vehicle offense. All but one of these death or injury by vehicle offenses are felonies and are predicated upon causing death or injury while driving while impaired in violation of G.S. 20-138.1 or 20-138.2. The offenses for which impaired driving is an element are, of course, implied consent offenses. See G.S. 20-16.2 (defining implied consent offense as “an offense involving impaired driving or an alcohol-related offense made subject to the procedures of this section.”) This means that a person arrested for or charged with such an offense may be required to submit to a chemical analysis of his or her breath, blood, or urine. G.S. 20-16.2. In these cases, as with any implied-consent offense, law enforcement officers have discretion regarding whether to administer a chemical analysis. G.S. 20-16.2(a). A law enforcement officer or chemical analyst also decides what type of test or tests are to be given. G.S. 20-16.2(c). There is no statutory requirement that a breath test be requested before a person is requested to submit to a test of his or her blood or urine, see G.S. 20-139.1(b5), though the denial of a person’s reasonable request for a different test may raise constitutional concerns. See Schmerber v. California, 384 U.S. 757, 760 n.4 (rejecting defendant’s argument that withdrawal of blood for testing violates due process and noting that “[i]t would be a different case if the police . . . refused to respect a reasonable request to undergo a different form of testing”).
A person’s willful refusal to submit to a chemical analysis of his or her blood or urine—even if the person already has submitted to a breath test—triggers an indefinite civil license revocation pursuant to G.S. 20-16.5 and a 12-month license revocation pursuant to G.S. 20-16.2.
Misdemeanor death by vehicle, 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, is, in contrast, not an implied consent offense. Thus, a person charged with such an offense is not subject to any of the implied consent testing procedures recited above.
S.L. 2011-119, enacted June 13, 2011, changes these rules for death by vehicle offenses committed on or after December 1, 2011. First, it provides that misdemeanor death by vehicle is an implied consent offense. That means that a person charged with misdemeanor death by vehicle, which might be predicated upon a traffic violation such as failure to stop at a stop sign that proximately causes the death of another, could be statutorily required to submit to implied consent testing. Yet why would an officer ever elect to conduct such a test without probable cause to believe the defendant was impaired? Of course, probable cause that a defendant was driving while impaired and proximately (but unintentionally) caused the death of another supports a charge of felony death by vehicle, which already was defined as an implied consent offense.
Requiring implied consent testing of persons without probable cause for an impaired driving or alcohol-related offense raises constitutional concerns if such testing is viewed as lawful not because it is premised on true consent, but instead because it merely authorizes what could constitutionally be compelled. (See this post on the theory of implied consent.) The Supreme Court in Schmerber held that a warrantless withdrawal of the blood of a defendant for whom there was probable cause to believe was driving while impaired was reasonable given the exigency created by the dissipation of alcohol in a defendant’s system. Certainly such a search would be unreasonable, and unconstitutional, absent probable cause to believe that the search would lead to evidence of a crime. On the other hand, perhaps the State can constitutionally condition the privilege to drive on submitting to implied consent testing. Under such a view, implied consent is actual consent and there is no need for further constitutional analysis.
Section 2 of S.L. 2011-119 also amends G.S. 20-139.1(b5) to provide that a person charged with a violation of G.S. 20-141.4 “shall be requested to provide a blood sample in addition to or in lieu of a chemical analysis of the breath.” Read alone, one might conclude, as the act’s title suggests, that “law enforcement [must] request a blood sample under the state implied-consent laws from any person” charged with a violation of G.S. 20-141.4. But given that the General Assembly amended only the “subsequent testing” procedures for implied-consent offenses, it appears that officers maintain the discretion afforded them under G.S. 20-16.2 to determine whether to require testing at all. Once an officer does elect, however, to test a defendant charged under G.S. 20-141.4, S.L. 2011-119 requires that the officer request a blood sample unless the person submits to a breath test and the result is .08 or more. Finally, S.L. 2011-119 provides that if a person charged with G.S. 20-141.4 willfully refuses to prove a blood sample, a law enforcement officer “with probable cause to believe that the offense involved impaired driving or was an alcohol-related offense made subject to [the implied-consent procedures],” must seek a warrant to obtain a blood sample.
Readers, if you have thoughts about the significance of this act, how these changes will alter the investigation of death by vehicle offenses, or any of the other issues discussed in this post, please write in to share your thoughts.
I blogged here about the court of appeals’ opinion in State v. Davis, ___ N.C. App. ___ (2010), a case in which the defendant was convicted of several offenses and sentenced to more than 35 years imprisonment for driving while impaired and crashing his truck into another truck, killing two people and seriously injuring a third. The state supreme court granted discretionary review and released its opinion in State v. Davis, 364 N.C. 297 (2010) on Friday, vacating judgments against the defendant for felony death by vehicle and felony serious injury by vehicle on the basis that the court was not authorized to punish the defendant for those offenses because he was sentenced for the more serious offenses of second-degree murder and assault with a deadly weapon inflicting serious injury (AWDWISI) for the same conduct and consequences.
The supreme court’s analysis is straightforward. First, the court held that the court of appeals erred in refusing to review the issue of whether the trial court lacked statutory authority to sentence the defendant for felony death by vehicle and felony serious injury by vehicle. While constitutional arguments, such as the defendant’s argument that the multiple punishments constituted double jeopardy, must be raised at trial or are deemed waived, the court explained that a defendant may appeal from prejudicial statutory violations, regardless of whether he or she objected at trial.
On the substantive issue of statutory interpretation, the court found dispositive and clear G.S. 20-141.4(b), which provides: “Unless the conduct is covered under some other provision of law providing greater punishment, the following classifications apply to the offenses set forth in this section.” Felony death by vehicle and felony serious injury by vehicle are codified in G.S. 20-141.4 as Class E and Class F felonies, respectively. The plain language of the statute provides that the classifications and corresponding ranges of punishment authorized for these offenses apply only when the conduct is not punished by a higher class offense. So, when a defendant such as Davis is punished for the more serious offenses of second-degree murder (a Class B2 felony) and AWDWISI (a Class E felony) for the same conduct for which he is convicted of felony death by vehicle and felony serious injury by vehicle, he may not be punished for the latter offenses.
Davis also was convicted at trial of impaired driving, a lesser included offense of the G.S. 20-141.4 offenses for which he was convicted. The trial court arrested judgment for the impaired driving conviction. Upon vacating the judgments for felony death by vehicle and felony serious injury by vehicle, the supreme court reinstated the impaired driving conviction and remanded for resentencing.
I blogged here about a new law, that prohibits texting while driving effective December 1, 2009. Texting while driving is an infraction, a non-criminal violation of the law, punishable by a $100 fine and costs of court. As one blog-reader noted, there are significant questions about how law enforcement officers will enforce the new law, given that it is permissible to enter letters or numbers into a mobile device for purposes other than texting, such as to place a telephone call or obtain driving directions. The reader suggested that perhaps the law was designed to cause drivers to “think twice” before texting while driving. Maybe so. But it remains to be seen whether the measure will reduce the practice.
And there is cause for concern if it does not. A 2008 report by the National Highway Transportation Safety Administration (NHTSA) summarizing studies of driver distraction notes that the auxiliary functions of cell phones, namely text messaging, downloading of audio and video, and gaming, are being performed largely “by drivers without fully-developed driving skills.” As a result, the report predicts a “synergistic acceleration” in the resulting safety problem.
It is worth noting that North Carolina, along with many other states, has done little to address the hazards associated with the traditional use of cell phones – placing and receiving telephone calls. While minors and school bus drivers are banned from using mobile phones while driving, subject to limited exceptions, no other restrictions apply to cell phone use by adults. This is true despite the fact that studies have shown a fourfold increase in the risk of serious crash involvement among drivers using a phone at the time of a collision.
So, what if the worst happens? While typing a text message, a driver crosses the center-line of a highway, hits another car head-on, and kills the driver of that car. What offense has the texting driver committed? Involuntary manslaughter, a Class F felony? Or is the more appropriate charge misdemeanor death by vehicle, a Class 1 misdemeanor?
Reckless driving can arise to the level of culpable negligence for purposes of an involuntary manslaughter conviction even in the absence of impairment by alcohol or drugs. See State v. Wade, 161 N.C. App. 686 (2003). But does texting while driving demonstrate the thoughtless disregard of consequences or heedless indifference to the safety of others necessary to constitute culpable negligence? It seems unlikely that a North Carolina court would find that texting while driving rises to this level of culpability, particularly given that the offense results in no license or insurance points and is not negligence or contributory negligence per se in an action for damages arising out of the operation of a vehicle.
Unquestionably, though, the texting driver has committed the offense of misdemeanor death by vehicle by violating a motor vehicle law and thereby causing the death of another person.
The New York Times reported recently about a new Utah law that punishes a texting or emailing driver who drives recklessly and causes a fatality as severely as a person who drives while impaired and causes a fatality. The law was enacted after a college student who was text messaging his girlfriend while driving his SUV to work crossed the center line of the highway and hit a sedan traveling in the opposite direction, setting off a chain of events that ended in a crash that killed both occupants of the sedan, who were scientists on their way to work.
In the Utah case, the investigating officer subpoenaed phone records that showed that the student and his girlfriend had sent 11 text messages to one another in the 30 minutes before the crash. Investigators concluded the student sent his last text when he crossed the center line.
According to the Times, Alaska is the only other state to “take a similarly tough approach to electronic distraction.” There, too, legislation resulted from a fatal accident.
It remains to be seen whether North Carolina’s new texting ban will avert such tragedy.