The case of Trevor Clarke, an Ottawa Canada driver who was involved in a serious 2012 collision with a bicyclist while drunk, and then fled the scene raised quite a stir. According to news reports, the driver was convicted (by a judge, meaning this was for unstated reasons not a jury trial) in 2015 of “impaired driving causing bodily harm”, but was found not guilty of leaving the scene because the judge said. “I am left in a reasonable doubt about whether Mr. Clarke knew or was wilfully blind to having collided with a person, precisely because he was so drunk. He cannot, therefore, be convicted of this offence”.

This brings up the whole topic of whether or not, and when, people can be held criminally responsible for their actions; even if they might not be aware of them (plausible deniability?)?

This broadly falls under the concept of mens rea, “the guilty mind”, and the general principle that people can only usually be held accountable for actions of which they are aware.

What about Homicide, Assault or other crimes?

…intentionally, knowingly, recklessly or with criminal negligence

If Trevor Clarke was so drunk, then why not just dismiss all the charges? After all he didn’t mean to hurt his victim, and anyways he was so drunk he couldn’t have known what he was doing, right? I don’t know and am not going to try to look up Ottawa’s laws, but this is all covered nicely here in Arizona by some definitions. Arizona has no such crime, impaired or not, as vehicular homicide or vehicular assault; here drivers whose impairment is believed to have caused a collision resulting in serious injury /death would be charged with Aggravated Assault / 2nd Degree Murder.

Looking at the assault statue is illustrative (this is “simple” assault; in the case of an impaired driver, the assault then becomes “aggravated” because it involves the use of a “dangerous instrument”)[]. So we see that a driver causing a collision due to impairment generally falls under A1,  their actions are reckless, and AZ even has the explicit drunk-is-no-defense definition:

§13-1203. Assault; classification
A. A person commits assault by:
1. Intentionally, knowingly or recklessly causing any physical injury to another person; or
2. Intentionally placing another person in reasonable apprehension of imminent physical injury; or
3. Knowingly touching another person with the intent to injure, insult or provoke such person.
B. Assault committed intentionally or knowingly pursuant to subsection A, paragraph 1 is a class 1 misdemeanor. Assault committed recklessly pursuant to subsection A, paragraph 1 or assault pursuant to subsection A, paragraph 2 is a class 2 misdemeanor. Assault committed pursuant to subsection A, paragraph 3 is a class 3 misdemeanor.
(see §13-1204 for aggravated assault)

Or in the case of a death, prosecutors in AZ for some time (at least 10 years, maybe more?) have been going for 2nd degree murder — that is one step more serious than manslaughter. This comes as some surprise to people who insist that drunk driving killers are “getting off easy” or just receive a “slap on the wrist”, etc:

§13-1104. Second degree murder; classification
3. Under circumstances manifesting extreme indifference to human life, the person recklessly engages in conduct that creates a grave risk of death and thereby causes the death of another person...

So the four, from levels of culpability from most to least are:

  • intentionally
  • knowingly
  • recklessly
  • criminal negligence

Sometimes the crime is specific to a certain level of culpability, e.g. Negligent homicide is wrongfully killing a person through criminal negligence, §13-1102. The assault law, above, covers assault done either intentionally, knowingly, or recklessly; with the penalty varying.

§13-105 Definitions
 6. "Conduct" means an act or omission and its accompanying culpable mental state.
 10. "Culpable mental state" means intentionally, knowingly, recklessly or with criminal negligence as those terms are defined in this paragraph:
 (a) "Intentionally" or "with the intent to" means, with respect to a result or to conduct described by a statute defining an offense, that a person's objective is to cause that result or to engage in that conduct.
 (b) "Knowingly" means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that the person's conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission.
 (c) "Recklessly" means, with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be 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. A person who creates such a risk but who is unaware of such risk solely by reason of voluntary intoxication also acts recklessly with respect to such risk.
 (d) "Criminal negligence" means, with respect to a result or to a circumstance described by a statute defining an offense, that a person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be 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.

Separate from all that, intoxication “is not a defense for any criminal act…”, §13-503

§13-503 Effect of alcohol or drug use
Temporary intoxication... does not constitute insanity and is not a defense for any criminal act or requisite state of mind.

The four types of homicide noted here; also see more about vehicular-assault.

Hit and Run

In some places, the crime of hit and run explicitly requires that the accused “knowingly” did it. This is not the case in Arizona compare, e.g. NJ to AZ (with the UVC thrown in for good measure; the passage is verbatim to AZ):

Arizona §28-661(A) The driver of a vehicle involved in an accident resulting in injury to or death of a person …

New Jersey 39:4-129. (a) The driver of any vehicle, knowingly involved in an accident resulting in injury or death …

UVC §10-102 & 104(a) The driver of a vehicle involved in an accident resulting in injury to or death of a person …

I’m not going to bother to try and find Ottawa’s laws but you get the point. In, e.g. NJ, there is an explicitly stated culpable mental status requirement of “knowingly” whereas in AZ, there is no stated requirement. Perhaps there is some sort of implicit mens rea requirement when there is none specified by the law?

Nope (but see Case Law section, below).

Crimes without a mens rea requirement are known as  “strict liability”, where knowing is not an element of the crime that must be proven in order to convict.  Arizona’s hit-and-run statute has no culpability requirement. See §13-201 Requirements for criminal liability, and  §13-202 “If a statute defining an offense does not expressly prescribe a culpable mental state that is sufficient for commission of the offense, no culpable mental state is required for the commission of such offense, and the offense is one of strict liability unless the proscribed conduct necessarily involves a culpable mental state.”  Finally  §13-204 Effect of ignorance or mistake upon criminal liability; “Ignorance or a mistaken belief as to a matter of fact (or law) does not relieve a person of criminal liability”; in short not knowing doesn’t allow shirking responsibility.

This may seem harsh, but it’s due to legislature’s decision that hit and run is a particularly cowardly and heinous crime — one often committed to cover up some other additional wrong-doing — and felt it was appropriate to place this extra duty/burden on people who choose to drive vehicles. There are a couple of unusual hypotheticals such as a driver being ordered at gunpoint to flee (say by a bank robber, or a kidnapper); or even a driver who knowingly leaves the scene in order to get help that are nicely covered by Title 13’s Justifications chapter; a justification is a legally valid defense for what would otherwise be breaking a law[1]. In the preceding examples,  §13-412 Duress, and   §13-417 Necessity defense, respectively, would apply. There is no “I didn’t know” justification. There is no “I thought it was a deer” justification. There is no “I was too scared to stop” justification.

In the event that the driver is intoxicated, as noted above,  “is not a defense for any criminal act…”, §13-503; including hit-and-run.

Note also that in all places including Arizona, hit-and-run is no-fault — it is immaterial to proving the crime who caused the collision (the “hit”). The only relevance of fault is in sentencing.

How this would play out in court is clearly another matter; and for practical purposes a prosecutor is unlikely to bring the criminal hit-and-run charge against a driver who actually didn’t know. Stories that start out with “it was a dark and stormy night”, and conclude with “i thought it was a deer” generally don’t wash.

Hit-and-run is a crime defined in Title 28, Transportation, of the ARS (Arizona Revised Statutes); whereas Criminal is Title 13: §13-102D “Except as otherwise expressly provided, or unless the context otherwise requires, the provisions of this title shall govern the construction of and punishment for any offense defined outside this title”.

I’m having a hard time finding legislative histories, so far the best I can do is (requires an ASU login) HeinOnline,  Session Laws Library 1864-2014; Including the Territory of Arizona (1864-1912). Each session is in a scanned/ocr’ed (so searching is potentially iffy) document. For example I did find the modern/current version of 13-202 was from 1978.

Also see hit-and-run-in-arizona, for more general background.

Case Law / Jury Instructions

The State Bar of Arizona publishes a lengthy document of jury instructions; go here for more/latest info.
Here is an extract from the Title 28 Vehicular Crimes portion:

This instruction shall also be followed by the instruction concerning knowledge of injury, if that is at issue – Statutory Non-Criminal Instruction 28.6611. See State v. Blevins…
28.6611 − Knowledge of Injury
The State must prove that the defendant actually knew of the injury to another or that the defendant possessed knowledge that would lead to a reasonable anticipation that such injury had occurred. [Circumstantial evidence may be used to prove such knowledge.]
SOURCE: State v Porras, 125 Ariz. 490, 493, 610 P.2d 1051, 1054 (1980).
USE NOTE: Use this instruction in conjunction with Statutory Non-Criminal Instruction 28.661.
Failure to instruct the jury on the issue of defendant’s knowledge of the personal injury of the victim is fundamental, reversible error. State v. Blevins, 128 Ariz. 64, 68, 623 P.2d 853, 857 (App. 1981).
Use the bracketed language if appropriate.

Legislative History

For a detailed history of hit-and-run statutes in AZ back to 1913 (the year after statehood!) see that section at hit-and-run-in-arizona. Legislative history of 13-202B (crimes without expressly prescribed culpable mental state are strict liability unless the proscribed conduct necessarily involves a culpable mental state) —

  • 1978 33rd Legislature, 2nd Regular Session [HeinOnline], HB2025 Crimes and Offenses, Ch. 201 page 713 (this is part of a huge reorganization of the entire criminal code). Amended 13-202B significantly — it changed the default (i.e. when unspecified) culpable mental state from is required to strict liability, and has been unamended since, as least as of 2015.
  • 33rd 1977 33rd Leg 1st Regular session [HeinOnline],  HB2054 Relating to Crimes… Ch. 142 p. 678-??? (this is a big one). Repeals 13-113 (which seems to have been the precursor) and adds 13-202 Construction of Statues with respect to culpability (and the other 13-20x statutes) in its entirety; page 695-696. Also 13-201B (also added in its entirety) said “provision of this chapter apply only to this title”(Title 13 is Criminal; hit-and-run is in Title 28) — this subsection was removed in 1978, see above.
  • I can’t find the prior history; but likely before 1977, would not have had anything to do with hit-and-run because of the “this title” language.


Other Cases / scienter / strict liability

In spite of 13-202B (1978)’s flipping the default  mens rea / scienter requirement to strict liability; court decisions routinely support and reinforce the opposite.

Consider this 2014 Court of Appeals Div2 opinion (not sure if it’s published?)   State v. Veloz (a shoplifing case):

Because the plain language of (the crime) does not include a mental state, we must determine whether the prohibited conduct necessarily involves a scienter requirement by examining the words of the statute and legislative intent… Absent a clear legislative intent that (the crime) be a strict liability offense, we conclude a culpable mental state is required.

which refers to the published State v. Yazzie 232 Ariz. 615; 307 P.3d 1042 (don’t know why but can’t find it on a public link?) , referring to 13-202B:

Notwithstanding this statute  (and earlier, similar versions), our supreme court has held that “[s]trict liability offenses are the exception rather than the rule and will only be found where there is a clear legislative intent not to require any degree of mens rea.” State v. Jennings, 150 Ariz. 90, 94, 722 P.2d 258, 262 (1986); accord State v. Williams, 144 Ariz. 487, 488, 698 P.2d 732, 733 (1985) (“The requirement that in a criminal case the State demonstrate some degree of wrongful intent is the rule rather than the exception. Strict liability applies only where there is a clear legislative intent that the crime does not require any degree of mens rea.”).

None of the published hit-and-run cases I can find even bother to mention 13-202B; which is somewhat odd. It seems to me any 1978 or newer cases should have; one way or the other. In the other types of cases I found that does examine 13-202B, it appears Courts are interpreting the “unless the proscribed conduct necessarily involves a culpable mental state” clause, and rarely find strict liability.


What about other states, and the UVC?

The site has a nearly-complete reference to most of the 50 US state’s laws. also has a 50-state reference. Quickly poking around, some states have knowingly (or variation: “knows”, “with knowledge of”) and others do not. According to the TLA (1979; which is the newest edition) 10-102, p.29 “Ten states expressly make their laws applicable only to drivers who are conscious of the fact that an accident has occurred. See CT, GA, MA, MI, MO, NH, NY, OH, OK, and RI, infra.“. MN (now at least) says ” knows or has reason to know”, see comment below for more from MN.

The TLA is an interesting blast-from-the past (1970’s); hit and run laws have been significantly amped up in terms of potential penalites over the last 40 years. At the time it was written, it quotes AZ’s 28-661 as a class 1 misdemeanor. It is now as much as a class 2 felony(!), see section Legislative History for mostly recent changes (I don’t know how to research before ~ 1990).



[] This appears as footnote 131 from the Arizona Law Review article: Arizona Criminal Code Revision: Twenty Years Later (available on LexisNexis Academic) — State v. Cocio, 147 Ariz. 277, 709 P.2d 1336 (1985) (en banc), vividly illustrates the disparity in sentencing that can result from charge-based mandatory punishment when a defendant exercises his right to trial. Cocio’s truck collided with a car driven by Rodriguez, killing a passenger in the Rodriguez vehicle. Both Cocio and Rodriguez were charged with manslaughter and driving under the influence of alcohol. The prosecution also charged both defendants with mandatory punishment allegations because the two vehicles qualified as “dangerous instruments,” and each was on probation at the time of the fatal incident. Rodriguez entered into a plea agreement with the prosecution and was sentenced to two days in jail, a fine and a year of probation. Cocio, however, rejected an identical plea bargain offer and was convicted. Since he had committed a dangerous felony while on probation, Cocio received a mandatory life sentence with no possibility of parole for twenty-five years. Ironically, the evidence suggested that Rodriguez was the more culpable of the two drivers. Yet Cocio, because of the mandatory sentencing regime, received a punishment vastly harsher than Rodriguez. In effect, Cocio received a life sentence for going to trial. See also Cocio v. Bramlett, 872 F.2d 889, 890 (9th Cir. 1989) (discussing these facts in the context of a denial of a habeas corpus petition made by Cocio).

[1] Certainly, everyone is familiar with justifications via famous homicide cases where a potential verdict is  not-guilty of manslaughter by reason of self defense,  justification §13-404 (or conversely, guilty because a jury didn’t believe the justification)

8 thoughts on “Knowingly”

  1. “If Trevor Clarke was so drunk, then why not just dismiss all the charges?”

    Sure. Just take away his license permanently until he can prove, through a battery of drug and psychological tests in the style of Germany’s Medizinisch Psychologische Untersuchung (Medical-psychological assessment), that he is no long a danger to others on the road.

    Don’t just lock him away and then make him automatically re-eligible to be licensed upon his release. That doesn’t solve much.

  2. MN’s basic hit-run statute 169.09 says “If the driver knows or has reason to know the collision resulted in injury to or death…”. They also make it so that if a driver “causes” a fatality in the collision and hit-and-runs, he’s automatically guilty of Criminal Vehicular Homicide 609.21
    Nevertheless, this case from Minnesota is interesting and has a lot of relevant involvement: mens rea, circumstantial evidence, failure to instruct on lesser included charge etc.; In any event it has had numerous appeals and finally wound up in Minn Supreme Court which rule in 2010, Minnesota v. Al-Naseer. The case is VERY complicated with numerous trials and appeals.

    Here’s an article discussing the case on The Minnesota Lawyer (login required), or I found full text is on LexisNexis, here’s a sample:

    Vehicular homicide reversed by Minnesota Supreme Court, mens rea not proved / Barbara L. Jones / Sept 17, 2010
    For the second time, the Minnesota Supreme Court has reversed the criminal vehicular homicide conviction of a man who said he did not know he had struck a human being with his car when he left the scene of an accident.
    The court applied heightened scrutiny in reviewing the element of mens rea, saying that it was not necessary that the entire conviction be supported by only circumstantial evidence for the higher standard of review to apply… “We … decline to impose a new duty on a driver to stop and investigate if he is not aware that he hit a person or vehicle,” Page wrote… As the court observed, the case has a long and complicated procdeural history…

  3. Once you start reading these, it’s hard to stop! In
    State v. Rodgers, 909 P.2d 445 (Ariz. Ct. App. 1995) the Court delved into the definition of the word “accident”; Rodgers was driving and his passenger jumped out of the moving car and got hurt. Rodgers’ guilty verdict was upheld.

    Here’s a good one-liner from State v. Parker, 666 P.2d 1083 (Ariz. Ct. App. 1983) Which dealt with a constitutional challenge to DWI law regarding lack of culpable mental state:

    The appellant’s second argument ignores the well-established classification of crimes as malum in se or malum prohibitum. DWI is the latter, an offense which is wrong because it is prohibited by law. It does not require proof of a culpable mental state. See A.R.S. § 13-202(B)

    Also with regard to DWI, in the same year State v. Thompson, 674 P.2d 895 (Ariz. Ct. App. 1983) said (my emphasis added; and see also State v. Lujan, 677 P.2d 1344 (Ariz. Ct. App. 1984) ):

    While criminal intent is generally required for criminal conduct, it is within the power of the legislature to criminalize certain acts without regard to the actor’s intent… A.R.S. § 13-202(B) states that absent an express culpable mental state, none is required and the offense becomes one of strict liability. We know of no case and appellant has cited no case to us that states that an offense which is malum prohibitum is unconstitutional if the punishment is not relatively small.

  4. I was re-reading this appeal.
    It recounts, in a normal matter-of-fact recitation, the horrendous homicide of Paul Lecuyer in 2006 by a very drunken Melissa Arrington. This case is somewhat famous for a bizzare jailhouse phone call made by the driver; e.g. see this treehuggerarticle. In the appeal the telephone exchange also comes up as “While Arrington was in custody, she received a telephone call from a friend during which the friend apparently remarked that Arrington
    should get ‘four for one credit’ for killing ‘a faggot, a tree-hugger, a Frenchman and a cyclist.’ Arrington laughed in response and stated, ‘I would have to agree with you.’ “.

    It covers much interesting material about sentencing, as in “dangerous” vs. “non-dangerous”.
    Arrington was convicted of aggravated DUI (because she was driving on a suspended license. Her license was suspended, in case you can’t guess, for a prior DUI); and that sentence was 2.5 years.
    She was sentenced on the Negligent Homicide charge as a “dangerous” felony, with aggravating/enhanced circumstances and got 8 years for that; which is the Max penalty for a class 4 dangerous felony in 13-704.

    The appeal doesn’t go into why the jury did not go for manslaughter, and instead the lesser included offense of Negligent Homicide.

    Arrington gets out sometime ~ 2018. According to this Mark Kimble opinon piece in Arrington’s plan put forth at her sentencing was to form a group to warn others of the dangers of drunk driving. We’ll see.

    Anyway, in the appeal is a sentencing dispute. Regarding her enhanced sentence; she wanted the culpability changed. And secondarily, she claimed it was improper for the neg hom sentence to be ordered to run consecutively to the aggravated DUI sentence. She lost all points.

    Arrington does not dispute that a motor vehicle may be a dangerous instrument, … but argues we should interpret § 13-604(F) to require the knowing or intentional — as opposed to the negligent or reckless — use of a motor vehicle as a dangerous instrument in order to support sentence enhancement.
    Arrington recognizes that Division One of this court has repeatedly rejected that interpretation but asserts those cases are wrongly decided. “Absent a decision by the Arizona Supreme Court compelling a contrary result, a decision by one division of the Court of Appeals is persuasive with the other division.”

    13-604 seems to be wrong (or changed in the last 5 years?)? But I can’t find exactly what they are referring to… It even says “As enacted in 1977, § 13-604(F), then numbered § 13-704(F)… ”

    There’s some interesting discussion and possibly useful boilerplate on statutory interpretation, the meaning of “the disjunctive ‘or’ “. And discussions about plain language interpretation vs. absurd results, and “clearly expressed legislative intent”.

    Here’s an interesting quote

    In Orduno, our supreme court held that § 13-604(F) does not apply to a DUI conviction because “[e]very
    DUI case involves the operation of a dangerous instrument”—a motor vehicle—and,
    therefore, “there is no such thing as a ‘non-dangerous DUI.’”

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