It would seem intuitive to most people, but many criminal defense lawyers simply fail to understand the difference in vehicular homicide cases and misdemeanor DUI or traffic accident cases. Vehicular homicide cases are, in fact, vastly different from other DUI, reckless driving, and misdemeanor traffic offense cases. Emotions run high and the intensity with which these cases are prosecuted is vastly different from cases that do not involve a death. If you hope to obtain an exceptional result in a vehicular homicide case, you need an exception vehicular homicide attorney.In 2017 alone, the National Highway Traffic Safety Administration reported 1,540 traffic fatalities in Georgia.
Population, fatal motor vehicle crashes, motor vehicle crash deaths and motor vehicle crash death rates per state, 2017
- State: Georgia
- Population: 10,429,379
- Vehicle miles traveled (millions): 122,398
- Fatal crashes: 1,440
- Deaths: 1,540
- Deaths per 100,000 population: 14.8
- Deaths per 100 million vehicle miles traveled: 1.26
These tragic incidents occurred for a wide variety of reasons, but the common factor was the involvement of a motor vehicle. While not every traffic fatality results in criminal charges, in some cases the responsible driver may face a vehicular homicide charge. This is a serious criminal charge that can lead to harsh penalties upon conviction. Have you or a loved one been charged with vehicular homicide? If so, call the Sessions Law Firm now and discuss your case with an Atlanta criminal defense lawyer.
WHAT IS VEHICULAR HOMICIDE?
Vehicular homicide occurs when a driver unlawfully causes the death of another using a motor vehicle. More specifically, the driver could face this charge when his or her violation of traffic laws leads to the death of another person. It is important to note that vehicular homicide is different than the criminal charge of murder. A driver may not have intended to cause the death of another, but could still be charged with vehicular homicide.
The level of the charge will often depend on which traffic law the driver violated.
Reckless Driving in Georgia Vehicular Homicide and Serious Injury Cases
What constitutes reckless driving in Georgia vehicular homicide and serious injury by vehicle cases is hotly contested (and misconstrued) in these cases. Dunagan v. State, 283 Ga. 501, 661 S.E.2d 525 (2008), provides helpful instruction as to what level and type of evidence is required to establish recklessness:
As Dunagan correctly argues, criminal negligence may support the offense of reckless driving, and it is more than the negligence that might render one liable for damages in a civil suit; it is recklessness or carelessness so as to show a disregard of consequences or a heedless indifference for the safety and rights of others who might reasonably be expected to be injured thereby. Walden v. State, 273 Ga.App. 707, 710-711(1), 616 S.E.2d 462 (2005). Even the found violation of a highway safety statute, such as running a red light as in this case, may not constitute criminal negligence, unless the violation is intentional, wilful, or wanton, or though unintentional, is accompanied by recklessness or is under circumstances from which probable death or injury to others might be reasonably anticipated. Id. at 711(1), 616 S.E.2d 462.
MISDEMEANOR VEHICULAR HOMICIDE CHARGES IN GEORGIA
Let’s take a case in which a person is involved in a traffic accident that results in the death of another person, and let’s say that the at-fault driver is alleged to have been following too closely. However, there is no allegation that the at-fault driver was being reckless or driving under the influence of alcohol or drugs. That at-fault driver may be charged with second degree vehicular homicide or homicide by vehicle in Georgia. This is a misdemeanor vehicular homicide charge, and the statutory provision for it is:
Any person who causes the death of another person, without an intention to do so, by violating any provision of this title other than subsection (a) of Code Section 40-6-163, subsection (b) of Code Section 40-6-270, Code Section 40-6-390 or 40-6-391, or subsection (a) of Code Section 40-6-395 commits the offense of homicide by vehicle in the second degree when such violation is the cause of said death and, upon conviction thereof, shall be punished as provided in Code Section 17-10-3.
FELONY VEHICULAR HOMICIDE CHARGES IN GEORGIA
If the driver violates certain traffic laws, and those actions caused another person’s death, the driver could face a first-degree vehicular homicide charge. This felony charge is often the result of traffic fatalities resulting from:
- Reckless driving;
- Driving under the influence of drugs or alcohol;
- Illegally passing or meeting a school bus or
- Fleeing or eluding a police officer.
A habitual violator of traffic and safety who kills another while driving on a suspended or revoked driver’s license may also face this felony charge.
Depending on the circumstances, a driver could face a misdemeanor charge of vehicular homicide. Every criminal case is unique, so it is important that your Georgia defense attorney carefully and objectively review all the facts when handling your case.
WHAT PENALTIES DO I FACE?
As with any crime, the penalties you face will depend on whether the charge is a misdemeanor or a felony.
In Georgia, misdemeanors, like second-degree vehicular homicide, are punishable by up to one year in jail, and fines up to $1,000. Felonies are punishable by prison sentences longer than one year and fines over $1,000. First-degree vehicular homicideis punishable by a prison sentence between three and 15 years. However, if the driver is a habitual violator, the penalty increases to five to 20 years in prison.
HOW DO WE APPROACH VEHICULAR HOMICIDE CASES?
First, it is absolutely critical that your criminal defense attorney understands what legal challenges can and should be mounted to your charges. We have remained on the cutting edge of DUI litigation in Georgia, and we understand this extremely complex area of the law as well – if not better – than almost any other practitioner in the state. If your criminal defense attorney is attempting to get up to speed on DUI law in connection with your case, it is too late.
We aggressively pursue our motions practice in these cases, and we have found that this is instrumental to our success.
Our Approach to Defending Georgia Vehicular Homicide Charges
Defending Georgia vehicular homicide charges is not like defending a “regular” DUI or reckless driving charge. Many attorneys are, quite simply, blindsided by the evidence that they see during the trial of vehicular homicide cases. They are unprepared for the level of detail and depth of opinions that they will encounter in vehicular homicide cases. Make no mistake: the level of preparation and investigation that the State will undertake in the preparation of a vehicular homicide and serious injury by vehicle case is vastly different than the investigation and case presentation that one might expect in a misdemeanor DUI or reckless driving case. In short, criminal defense attorneys that represent clients charged with felony DUI vehicular homicide and serious injury by vehicle charges must approach the cases with a different perspective than they would similar misdemeanor charges.
Many defenses that might be available in a misdemeanor DUI case are no long available in felony vehicular homicide cases. For example, in many DUI cases, defense attorneys argue that the jury should compromise and find their client guilty of the “lesser” offense of reckless driving. The problem is that reckless driving in combination with a serious injury or death is a felony in Georgia.
Issues that arise during the course of felony DUI and serious injury by vehicle cases are not frequently seen in Georgia misdemeanor DUI cases. You might (mistakenly) think that any lawyer would have adequate time to prepare for different issues as they arise. The problem is that there is not plenty of time and frequently there is not advance notice. If a lawyer does not know what to ask for, he/she will not receive any notice that the evidence will presented to the jury or judge. If the lawyer does not know the evidence is going to presented, he/she will not be prepared to object to the admissibility of the evidence.
Transfer Hearings in Juvenile DUI-Vehicular Homicide Cases
I recently handled a transfer hearing for a case involving a juvenile charged with, among other things, DUI vehicular homicide. The district attorney sought to transfer the case from juvenile court to superior court, and we contested that motion. Many friends and colleagues asked me about these transfer hearings generally proceed and, in particular, how we prepared for the hearing involving a Georgia DUI-vehicular homicide charge. Below are a few of the issues that I believe are most important:
- Know your state’s case law regarding the types of cases that are typically transferred. I think that one of the most compelling arguments against transferring a juvenile to superior court in a DUI vehicular homicide case is the lack of specific intent associated with this crime. Consider the appellate cases addressing whether a transfer is appropriate. In Georgia, there is not a single reported case that I am aware in which a case was transferred from juvenile court to superior court that involved a crime of general intent. How can the state show a pattern of activity in committing a general intent crime such that the juvenile is incapable of being adequately treated by the juvenile court?
- Prepare for your child’s school history. A vehicular homicide charge is, for the most part, a random act. As one witness in a recent transfer hearing testified, it could be any of us. The child certainly did not intend to commit the act alleged. Nonetheless, the state will introduce even instance of poor behavior from the child’s school records to show a “pattern” of misbehavior and disobedience.
- Have the child evaluated by a substance abuse counselor. Plan on the state eliciting testimony from some of the child’s teachers about petty child behavioral issues in an effort to show that the child has repeatedly disregarded adult supervision. Rebut this with a professional who can establish that the child does not have a substance abuse problem, and any concerns regarding future problems can be addressed through the supervision programs provided by the Department of Juvenile Justice or your state’s equivalent agency.
- Know your local department’s limitations for oversight and treatment of juveniles.
- Be prepared to argue against the child “aging out” of the juvenile system. The state will argue that the child cannot be adequately treated by the juvenile system because of the closeness to adulthood.
Learning to Communicate With Victims of Vehicular Homicide and Serious Injury by Vehicle Cases
Nothing – and I mean NOTHING – is more harmful in sentencing than the presentation to a judge that the Defendant has failed to communicate with victims in vehicular homicide and serious injury by vehicle cases. It literally sucks the air out out of the room when the victim or their representative tells the judge that “all they wanted was to hear from the Defendant.” Whether it is true or whether it would have made any positive difference in the victim’s view of the Defendant, it is unquestionably true that the failure of the Defendant to communicate with the victims in vehicular homicide and serious injury by vehicle cases absolutely affects judges.
All too frequently, DUI lawyers that get retained on vehicular homicide and serious injury by vehicle cases get too wrapped in the substantive defense of the case to begin communicating with the victim. Like it or not, the vast majority of these cases, however, end up in plea bargains. One of the most frequent questions that I am asked (by lawyers and clients alike) is what the range of sentences are for a DUI vehicular homicide charge in Georgia. There is no “one size fits all” answer to this question. However, the one factor that dominates this discussion is the hurt and anger of the victims, and we, as criminal defense lawyers, must learn to communicate more effectively with victims. The “restorative justice” theory offers a viable means of engaging in this much-needed dialogue.
Restorative justice offers alternatives to our traditional notions of the way in which the criminal justice system works. Rather than focusing on punishment, restorative justice seeks to repair the harm done. At its best, through face-to-face dialogue, restorative justice results in consensus-based plans that meet victim-identified needs. This can take many forms, most notably conferencing models, victim-offender dialogue, and circle processes. In applications with youth, it can prevent both contact with the juvenile justice system and school expulsions and suspensions. Restorative justice also holds the potential for victims and their families to have a direct voice in determining just outcomes.
I dislike lawyers that simply enter guilty pleas as much as anyone; however, it is a reality of our system, particularly here in Georgia, that there is a very real difference in the amount of time that a person may serve on a vehicle homicide charge as a result of negotiated pre-trial plea, as opposed to the amount of time that may be served upon conviction after trial. If you don’t believe me, just take a brief look at the Georgia Board of Pardon and Parole’s parole eligibility grid.
I have ascribed to the philosophy that if I work hard on my cases and develop as strong of a defense as possible, I will obtain the best possible result for my client. The problem is that this model, so to speak, does not consider the influence that the victim may have on the defense strategy. Particularly in vehicular homicide and serious injury by vehicle cases, the input of victims is a vital consideration in the ultimate resolution of the case.
Georgia Serious Injury By Vehicle and Vehicular Homicide Cases – Defense Evidence
Evidence relating to subsequent remedial measures in roadway construction can be a significant issue in Georgia serious injury by vehicle and vehicular homicide cases. In serious injury by vehicle and vehicular homicide cases, an explanation for the accident – other than a defendant’s recklessness or impairment by alcohol or drugs – is of tremendous importance.
Presenting evidence of that other non-impaired people have been involved in an accident at the same location and that the state has subsequently made changes to the roadway can be crucial evidence in the defense of a Georgia serious injury by vehicle and vehicular homicide case.
Dunagan v. State, 661 S.E.2d 525 (Ga. 2008)
As to the evidence of subsequent modifications to the intersection, it was admissible not only to attempt to show that there were known flaws in the intersection, and hence known dangers, at the time of the collision but also that the Department of Transportation was the responsible party.This is so because “[g]enerally, evidence implicating another named [party] as the actual perpetrator of the crime is relevant and admissible as tending to exonerate the defendant.” Azizi v. State, 270 Ga. 709, 714(6), 512 S.E.2d 622 (1999).
This is in contrast to the general rule in negligence actions that evidence of subsequent remedial measures is inadmissible. Brooks v. Cellin Mfg. Co., 251 Ga. 395, 397, 306 S.E.2d 657 (1983). The exclusion of this kind of evidence in civil actions is grounded in the public policy that parties should be encouraged to make needed repairs without fear of admission of liability. Dept. of Transp. v. Cannady, 270 Ga. 427, 428(1), 511 S.E.2d 173 (1999). Thus, the propriety of the admission of the evidence of post-collision remedial measures in the present criminal case does not affect the principles and policies governing the admission of such evidence in civil cases.
Was the other driver in a vehicular homicide case under the influence?
MOTION IN LIMINE TO DETERMINE ADMISSIBILITY OF EVIDENCE THAT THE DECEDENT DRIVER WAS INTOXICATED
Comes Now, the Defendant, by and through the undersigned counsel of record, and respectfully moves this Honorable Court for a pre-trial ruling regarding the admissibility of evidence that the decedent driver was intoxicated at the time of this accident. In support of this motion, the Defendant respectfully shows this Honorable Court the following:
STATEMENT OF RELEVANT FACTS
1.The Defendant is charged with vehicular homicide in the 1st degree.
2.The decedent in this case was the driver of a vehicle that crashed into a vehicle operated by the Defendant.
3.The decedent was operating her vehicle with a blood-alcohol concentration of approximately .267 grams per 100 milliliter of blood – approximately 3 times the legal limit for drivers over the age of 21.
ARGUMENT AND CITATION OF AUTHORITY
At trial, the Defendant intends to introduce evidence that the decedent was operating her vehicle while in an extremely intoxicated condition, and her intoxication prevented her from taking appropriate actions to avoid this accident and minimize the possibility of the crash. The admissibility of this evidence is controlled by the Georgia Supreme Court’s ruling in Crowe v. State, 591 S.E.2d 829 (Ga. 2004).
The Georgia Supreme Court has previously ruled that it was reversible error for a trial court to exclude evidence that the decedent driver was possibly intoxicated in a vehicular homicide case:
But evidence that [the decedent] may have been impaired by marijuana, and thereby less able to avoid the accident, would clearly be relevant to disputed issues in this case. In a vehicular homicide case, the conduct of all drivers involved in the accident is relevant to the extent it may impact the jury’s determination of which driver’s actions caused the injury, or whether the injury resulted from an unavoidable accident.
Id. at 830 (citations omitted)(emphasis added).
In Crowe, the Supreme Court went on to state:
The State argues that Lynch’s possible impairment is irrelevant because the State’s experts testified that Crowe’s actions left Lynch with no way to avoid the accident. Although that may be true, it is a fact for the jury to decide. The jury is entitled to hear all the relevant evidence, judge the credibility of all the opposing witnesses, and make that decision for itself. The jury is not required to accept the State’s experts’ opinions. Whether or not Lynch was impaired, and whether or not her impairment contributed to the accident, was for the jury to determine.
The urinalysis evidence indisputably goes to the question of whether Lynch was impaired and whether that impairment contributed to the accident. Because the record reveals the factual possibility that Lynch was impaired at the time of the crash, and that her impairment may have contributed to the accident, the trial court erred when it prohibited Crowe from presenting the urinalysis evidence or cross-examining Lynch about her marijuana use prior to the crash. If that evidence had been admitted, the jury might have concluded that Lynch was an unsafe driver due to her impairment by marijuana. Such a conclusion would have affected the jury’s determination of Crowe’s guilt, and accordingly Crowe’s conviction must be reversed.
Id. at 831 (citations omitted).
Crowe presented a troubling issue for the trial court and the Court of Appeals because the driver of the vehicle in which the decedents were traveling was alleged to be under the influence the of certain drugs that were detected in the driver’s urine but not her blood. Because drug impairment was at issue in Crowe, the courts were forced to address complex issues of absorption, elimination, and duration of affects of drugs. Nonetheless, our Supreme Court held that possible impairment of another driver in a vehicular homicide case was undoubtedly relevant to the issue of causation of death. In Crowe, the Supreme Court held that the jury should be permitted to decide what weight, if any, it would place upon the impairment of the other driver. Following Crowe, the jury should be permitted to assess the affect of the impairment of the decedent driver in this case as well.
In this case, the decedent was under the influence of alcohol, and it is anticipated that the State’s toxicologist will testify that alcohol has a highly predictable rate of absorption and elimination. It is anticipated that the State’s toxicologist that performed the blood test upon the decedent’s blood will also testify to the high degree of impairment that would be observed in a person that had a blood-alcohol concentration as high as the decedent’s.
Evidence of the decedent’s level of intoxication is relevant to the cause of the accident and death in this case. The jury should be permitted to hear this evidence and make a determination as to whether the decedent’s level of intoxication contributed to causing the accident.
Wherefore, the Defendant respectfully prays that this Honorable Court:
- Conducts a pre-trial hearing on the admissibility of this evidence,
- Issues an order permitting the Defendant to introduce evidence of intoxication by the decedent driver, and
- Grants the Defendant such other and further relief as this Honorable Court deems just and equitable.
Respectfully Submitted, this 24th day of August, 2016.
State Bar No. XXXXXXXXXX
Attorney for Defendant
The Sessions Law Firm, LLC
The Problem With Reckless Driving Charges
There is a real problem with reckless driving charges in Georgia. For most people, getting a dismissal of a DUI charge in exchange for a reckless driving conviction is an exceptional “win.” A reckless driving charge is a misdemeanor that does not require a license suspension for a driver over the age of 21 and does not require jail time. Most people believe that a reckless driving charge is a less sever charge than a DUI offense, and many jurors believe that a reckless driving charge is an acceptable middle ground between not guilty of DUI and a complete acquittal.
That sort “middle ground” verdict can result in dire consequences in vehicular homicide and serious injury by vehicle cases in Georgia. In a typical misdemeanor DUI trial, a reckless driving conviction may be a welcome verdict for a defendant. However, in a felony vehicular homicide or serious injury by vehicle case, a finding of reckless driving may serve as the basis for a felony conviction. With that background, we need to turn our attention to how we can effectively defend against the charge of reckless driving.
A Reckless Driving Charge in Georgia Is Not “Just Another Traffic Charge”
The common perception is that a reckless driving just another traffic offense, but in reality, a reckless driving charge is vastly different from a speeding citation or a red light ticket. A reckless driving charge in Georgia requires an allegation that the defendant acted with some level of intent. The intent element of reckless driving charges in Georgia provides the basis for the defense.
Serious Injury By Vehicle Charges in Georgia: Is Any Error In Jury Charges Too Much?
Serious injury by vehicle charges in Georgia are among the most serious vehicle-related criminal offenses that one case face under Georgia law. In many jurisdictions, the pre-trial recommendations for serious injury by vehicle charges in Georgia are extremely harsh. Due to the severity of pre-trial offers, many defendants go to trial in serious injury by vehicle cases with very difficult facts based upon their best guess as to parole eligibility. I had no involvement in Holman v. State, which is discussed below, but the facts in Holman are very difficult. Nonetheless, there are some important lessons to be drawn from Holman with regard to the scrutiny (or lack thereof) that our appellate courts employ in the review of trial court decisions in serious injury by vehicle cases in Georgia.
SERIOUS INJURY BY VEHICLE CHARGES IN GEORGIA: IS ANY ERROR JURY CHARGES TOO MUCH
Criminal defendants and attorneys defending serious injury by vehicle charges in Georgia rely upon the allegations contained within the indictment for the purpose of developing a defense. We rely upon the specific way that the State indicts serious injury by vehicle charges because there are multiple different ways that a defendant can commit the offense of serious injury by vehicle in Georgia, and we presume that the State will indict the Defendant in the way that it alleges in the indictment.
Our law, as reviewed initially by the Court in Holman, said that we, as criminal defense attorneys in Georgia, were correct in making these presumptions. Nonetheless, the trial court in Holman instructed the jury on various different ways that a defendant could be found guilty of committing the offense of serious injury by vehicle, and the trial court included ways that were not included in the indictment pending against the defendant:
(ii) As to the serious-injury-by-motor-vehicle instruction, Holman contends that the trial court gave the charge in such a way as to permit the jury to convict him in a manner not alleged in the indictment when the court included all of the various ways in which the crime may be committed, including “organic brain injury.” And here, the indictment alleged that Holman committed the offense by “depriving [the victim] of a member of his body and by rendering a member of his body useless, to wit, a closed head injury, resulting in a loss of consciousness, laceration of the right brow, bruised liver and injury to his spine ….”
It is unquestionable that, in criminal prosecutions, “the court’s instructions must be tailored to fit the charge in the indictment and the evidence adduced at trial.”26 In particular, this is true when the offense charged “may be committed in one of several ways, but the indictment charges one specific method.”27 Indeed, averments in an indictment as to the specific manner in which a crime was committed are “not mere surplusage,”28 and “[s]uch averments must be proved as laid, or the failure to prove the same will amount to a fatal variance and a violation of the defendant’s right to due process of law.”29 Accordingly, the instructions from the trial court must “sufficiently limit the jury’s consideration to the allegations and elements of the offense as charged in the indictment.”30 And in determining whether a charge contained error, “jury instructions must be read and considered as a whole.”31
Here, the trial court erred by adding “organic brain injury” to its jury charge. Nevertheless, any defect in the charge was cured by the jury being provided with the indictment and instructed that the State must prove beyond a reasonable doubt all material allegations in the indictment and all essential elements of the crimes charged. Accordingly, the trial court’s charge did not constitute reversible error.
Defendant’s Request To Charge
Criminal negligence may support the offense of reckless driving, and it is more than the negligence that might render one liable for damages in a civil suit; it is recklessness or carelessness so as to show a disregard of consequences or a heedless indifference for the safety and rights of others who might reasonably be expected to be injured thereby.
Dunagan v. State, 283 Ga. 501, 661 S.E.2d 525 (2008).
Walden v. State, 273 Ga.App. 707, 710-711(1), 616 S.E.2d 462 (2005).
CONTACT AN EXPERIENCED CRIMINAL DEFENSE ATTORNEY TODAY
The experienced legal team at the Sessions Law Firm takes a unique approach to vehicular homicide cases. Unlike some attorneys, our lawyers handle these cases without judgment or assumptions. We take on cases other attorneys are afraid of, because we know that every client deserves a fair trial and a zealous defense. Our personalized approach to these cases has earned Attorney Ben Sessions a Georgia Rising Star Award from SuperLawyers every year since 2010. If you have been charged with vehicular homicide, contact our Atlanta office today and discuss your case with a skilled vehicular homicide attorney.