Arizona Homicide by Vehicle ...DRAFT...

January 1, 2007 added section on Title 28.
August 23, 2006 added murder stat citation.  

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Background

This paper will examine how Arizona's homicide statutes apply to death or injury as a result of unintentional  traffic collisions. In Arizona, unlike most other states, there is no general-purpose "vehicular homicide" / "vehicular assault" law -- just the generic, criminal, homicide and assault statutes (a caveat is the new/updated 2006 statutes that criminalize some moving violations under specific conditions). When a person is killed/injured as a result of another's actions, the prosecutor must decide whether those actions rise to the level of homicide/assault. In the case of traffic collisions, prosecutors appear to bring criminal charges, or not, based soley on the defendant's impairment status. There is no reason statutorially why this should be. This injustice must stop.

Traffic fatalities overall are a huge problem. For example, there were 43,340 traffic fatalities a year in the US in 2003 [NHTSA data] -- to put that in perspective, there are well under 20,000 murders (the old-fashioned kind, guns, knives and so forth) a year [source: US Census Bureau, The 2006 Statistical Abstract, Table 297. 14,493 murders in 2003]. In Arizona, traffic fatalities are an even larger problem compared to the US as a whole.

Nationally, traffic collisions are the leading cause of death  for the age group 4 through 34 [NHTSA DOT HS 810 568 or newer: DOT HS 810 936 ]. Most fatalities are not the result of  drunk drivers, e.g. in 2004, Arizona was at 33% with 1151 fatals total and 385 impaired [NHTSA NCSA (National Center for Statistics and Analysis) STSI (State Traffic Safety Info)]. Does this mean we are too tough on drunk driving? Not at all! What it means is that prosecutors should not reflexively categorize non-drunk driver's behavior as reasonable --which is where we stand today.

Disclaimer -- I am not a lawyer, nor do I play one on TV.

ARS Transportation Code, Title 28

Violations of the transportation code are, by and large, civil offenses -- that is to say, not criminal. It is really frustrating to see that  littering near a highway 28-7056, for example, is a crime -- but negligently killing human being is generally a traffic ticket, and it's not unusual to not even issue the ticket! [note 1]

Exceptions in the Transportation Code involving simply operating a vehicle which are criminal

This last one bears further examination. On the surface, it sounds like at least a step in the right direction. These are new/updated laws [note 2]  that criminalize specific moving violations but only in conjuction with a prescribed list of violations and only when death/serious injury results. They are new, so any effect remains to be seen, but in practice it seems like they won't even be exercised (do the police know about this?). Not only that, the category of crime for 28-672 is very low, e.g. a class 3 misdemeanor for killing someone by moving violation is the same criminal category as littering. The other pair, 28-675/676 are more serious, with the fatality one being class 4 felony, the same category as Negligent Homicide. The serious injury verion is a class 5 felony. The more serious pair are like 28-672 except they also must involve somehow not being eligible to drive, e.g. suspended or revoked license.
The list of violation is the same for all three; red light, left turn, xwalk, due care to peds, school crossings, stop sign, school bus stop.

As an aside, merely driving on a suspended license is criminal: 28-3473.

There are many, many other criminal penalties within the transportation code, but they generally involve adminstrative minutia, or perjury,  or otherwise not directly involving the actual operation of a vehicle -- here are just a few selected examples:

Discussion of "double jeopardy" to go here. Statute of limitations for charges?

When there is an injury (any injury?) or fatality, the jurisdiction will conduct an investigation. The end result of the investigation is to recommend whether or not the prosecutor should bring criminal charges pursuant to the Criminal Code. The prosecutor (independently) decides. Indictment? grand jury?

ARS Criminal  Code, Title 13

Arizona recognizes four distinct types of homicide, in descending order of seriousness: "first degree murder, second degree murder, manslaughter or negligent homicide" [13-1101(2)].

 

ARS
Crime
must show conduct was:

13-1105
First Degree Murder
Felony class 1
Intentional and premeditated
.
"...Intending or knowing that the person's conduct will cause death... with premeditation"


13-1104
Second Degree Murder
Felony class 1
Intentional, or "manifesting extreme indifference to human life" -- but without premeditation.

[curiosity note: I can't find anything more on that bit about extreme indifferece, which comes from 13-1104(A)(3)]

13-1103
Manslaughter
Felony class 2
Reckless

" 'Recklessly' means... that a person is aware of and consciously disregards a substantial and unjustifiable risk ...
of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a
reasonable person
would observe in the situation" 13-105(9)(c)

Also of note, defendants specifically cannot claim to have been unaware by reason of intoxication. (you can almost see this one playing out in court -- "your honor, my client couldn't possibly have been aware of the risk, he was really really really drunk!")


13-1102
Negligent Homicide
Felony class 4
Criminal Negligence
 
" 'Criminal negligence' means... that a person fails to perceive a substantial and unjustifiable risk...
of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a
reasonable person
would observe in the situation. 13-105(9)(d)







copyright 2006 Ed Beighe, (NOT! Esq.) azbikelaw.org


Notes

1. see, e.g.  the case of Anselmo fatality. Murphy, Doug. "No penalty for fatal crash on Pecos Road." Ahwatukee Foothills News [Phoenix]09 August 2006

2. Two bills from the 47th / 2nd Regular Legislative session, HB2208 and HB2387, affected these statutes. HB2208 criminalized 28-672, and established new statutes 28-675 and 28-676 with criminal classifications. HB2387 also modified 28-672 -- somehow or other, that is all straightened out now (I'm looking in late 2008)





Question emailed to the Maricopa

This is a question for Vehicular Crimes Bureau:

How many prosecutions (say, Neg Hom, or Manslaughter) of NON-impaired vehicular killers have there been? Over whatever time period -- 5 years, 10 years, whatever.

I note that what I read in the newspapers, generally attributed to your spokesperson, does not seem to square with the statutes. In paraphrase he says: when there's no impairment there can be no prosecution.

What i read in the LAW (e.g. for neg hom) is that:

" 'Criminal negligence' means... that a person fails to perceive a substantial and unjustifiable risk...
of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a REASONABLE PERSON would observe in the situation. 13-105(9)(d)

in case you are interested, I am collecting facts here: http://azbikelaw.org/carlaw/homicide.html

Regards,

The email has been sent. Your reference number is: 2006-008269. [after-note: someone from 156.42.68.5, maricopa.gov, visited this page 8/10/2006 12:38p -- shortly after it was sent.]


I mention the Szymanski case because it is highly unusual. Apparently it is still ongoing, there was a mention of it in an Aug 20, 2006 opinion piece regarding the death penalty in general.

From the County Attorney's Press Release: "The defendant is being charged with felony murder because he was allegedly involved in the commission of another felony at the time of the victim’s death, namely unlawful flight from law enforcement".

This would be covered in 13-1105(A)(2) which has a long list of enumerated offences which if they are the cause of death, murder 1 can be sought.

The story, as it relates to the death penalty is now finally resolved: the county attorney annouced in September 2006 (the wheels of justice do turn slowly!) that he would NOT seek the death penalty. The problems with the procedural violations in the chase on the part of Scottsdale PD were cited as the reason (supposedly, "among others").

County seeks death penalty Driver, 22, charged with murder

Michael Kiefer
The Arizona Republic
Jul. 9, 2005 12:00 AM

Maricopa County Attorney Andrew Thomas said Friday that he will seek the death penalty for a young man accused of causing a fatal accident by driving the wrong way on Loop 101.

David James Szymanski, 22, was charged with first-degree murder in the April death of Cody Brett Morrison, also 22.

"This is the first time the death penalty has been sought in a vehicular homicide case" in Arizona, Thomas said. "Just because the murder weapon was a vehicle does not mean the death penalty will be ruled out."

Szymanski's attorney could not be reached Friday.

An attorney for the Morrison family released a written statement but did not refer directly to the death penalty.

"The Morrisons have been permanently and profoundly affected by the senseless loss of Cody, their only son," the statement said. "Vengeance is not their motive, and they have faith in our criminal and civil justice systems in addressing this tragedy."

Defense attorneys call the decision to seek the death penalty a reach.

"If the guy did what they say he did, the conduct is reprehensible," said Michael Black, a Phoenix attorney, "but it doesn't meet the statutory aggravating circumstances for the death penalty."

Attorney Larry Kazan agreed.

"This is pretty over the top," he said. "Shouldn't the death penalty be reserved for society's worst?"

Donna Elm, head of Arizona Attorneys for Criminal Justice, an association of defense attorneys, said, "It's a seriously reckless risk of life, but it's not the same quality of what we charge for death penalties."

Celebrating birthday

According to police reports, Szymanski was celebrating his 22nd birthday on April 7 and stopped at the apartment of an acquaintance. He allegedly threatened her with a butcher knife, scuffled with two men and caused damage to the apartment. He had reportedly been drinking.

Police vehicles followed him through Scottsdale and onto Loop 101, where the head-on collision occurred, police say.

Morrison was killed. The driver and another passenger were injured.

Under Arizona law, first-degree murder is the only crime that can be punished by death. A person can be charged with first-degree murder if the crime is premeditated or if the death occurred during the commission of certain felonies, in this case "unlawful flight," or fleeing from police officers. This is called "felony murder."

The death penalty can be imposed only if a jury finds certain aggravating factors. Thomas cites the assaults at the apartment, a prior allegation and the "grave risk of death" created by the wrong-way ride up the highway.

Similar attempt failed

Thomas knew of one other case in the country where prosecutors tried to get a death penalty in a vehicular homicide case. They failed.

In 1996, prosecutors in North Carolina indicted a man for first-degree felony murder in the crash deaths of two women. The jury found him guilty but chose not to condemn him to death.

Then that state's Supreme Court threw out the conviction because it ruled that driving while intoxicated was not an appropriate underlying felony for a murder charge.

"Unlawful flight" is an appropriate underlying felony for first-degree murder, according to Arizona statutes, but the charge can backfire for other reasons.

"One of the elements that they have to prove is that the guy knew he was being pursued by law enforcement officers," Black said.

The Arizona Republic has reported that Scottsdale police violated department policy while pursing Szymanski by not using emergency lights, among other transgressions.

In a premeditated first-degree murder case, a jury can choose to impose a lesser verdict of second-degree murder, manslaughter or negligent homicide.

But in felony murder, if the underlying felony is disproved, then the homicide charge is dismissed.

Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., could not point to any cases other than the North Carolina case in which state prosecutors sought the death penalty for vehicular homicide.

"What is happening is that death sentences have dropped by 50 percent over the past five years," he said. "And it's the worst cases - multiple murders, rape murder, the worst of the worst - are still getting the death penalty, but it's actually being used less. So this would be unusual for the prosecution and more unusual for the jury to return such a verdict. It may fit under the law, but it doesn't fit the trends in the country."

County defends action

Bill FitzGerald of the County Attorney's Office pointed out that the decision was made by a majority vote of the office's capital review committee, which comprises eight senior staff attorneys.

Thomas denied that the harsh punishment was meant to deter drunken driving.

"The purpose of seeking the death penalty in this case is not to send a message," he said. "We look at each case individually."

In the Szymanski case, they decided that the facts of the case made the death penalty appropriate.

Staff reporter Carol Sowers contributed to this article.


Miscellania


Sentancing issues, see 13-604, and 13-701. / 702 see HB2083 from 47thR2

There are a lot of attorney's web pages that explain this material, usually through the DUI lens. This one is pretty good: Arizona DUI Law Explained

Implication on Motor vehicle operation / Licensing / points, etc (Title 28). TBD

Alcohol involvement in Fatal Crashes, chart showing steady decline from almost 60% in 1982 to 40% in 1997 and then stagnating through 2002 [FHWA DOT HS 810 555]

There are some, e.g. getMADD who contend that there is a sort of conspiracy -- they generally object to roadblocks/checkpoints on civil liberties grounds, and further tightening of DUI laws.

US Census Bureau, The 2006 Statistical Abstract, has a load of info, it is available both in excel spreadsheets, or collected together into subjects, like law enforcement, transportation, etc.

Oddly, MADD reports a lower figure, e.g. their state-by-state listing says for 2004 there were only 322 DUI (over .08BAC) . ??

Faster than the posted speed limit is a "rebuttable presumption", with certain exceptions. The execptions include school zones, residential areas (others?) which posted limits are "per se" violations. 28-701 is basic speed law.

There is a newish law (2007?)in Illinois informally called "Matt's Law" relating to Distracted Driving. Here is SB1557, stuff about driver's ed and DD. The stuff with "the teeth" which will make distracted driving Vehicular Homicide isn't there yet; it is outlined in the Distracted Driving Task Force Report. Good quote from newspaper: "Under our laws currently, negligent traffic offenses are petty offenses," she (a state's attorney) said. "In other words, the penalties do not increase based on the severity of the outcome of the offense, unlike a number of other states that we researched in response to the Wilhelm case."

In OR, "a law for Lonny" (Lonnie Freeberg), would make a vehicular homicide law (OR is one of four states without one). Ongoing, see BTA will persue VH law in 2009. See the BTA site.

 


 


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