Prosecutors routinely decline to prosecute negligent drivers who kill/injure. Nearly without exception, they will only seek homicide (i.e. negligent homicide, or manslaughter) / aggravated assault charges if the driver is impaired. Short of that, the hurdle, in the minds of prosecutors, is very very high.
Arizona has no vehicular homicide law, it does however since 1998 have a law, §28-672, ” Causing serious physical injury or death by a moving violation” (and some companion laws 28-675 and 6 which work in an analogous fashion). The catch is that in order to be charged with 28-672, the driver must have been engaging in one or more of a specific list of infractions. For example, running a red light.
28-672 / HB2327 Hearing Minutes
This is the genesis, from the House Transportation Committee hearing on H.B. 2327, 2/10/1998. It was initially focused on red-light running, and indeed Frank Hinds went on to co-found Red Means Stop Alliance :
Frank Hinds, representing himself, Glendale, shared with the Committee the experience of losing his daughter by the actions of a red-light runner. Mr. Hinds recounted the suffering endured by those who survived the accident and noted that the driver who ran the red light was fined only $105 dollars, because running a red light is not a criminal offense unless drugs or alcohol are involved. Mr. Hinds urged the Committee to pass H.B. 2327 for his daughter, Jennifer, and for other innocent victims.
Representative Voss, shared the experience of a constituent in Mr. Kyle’s district who lost her husband by the actions of a red-light runner, while she herself suffered great bodily damage. Miss Voss noted that 13 percent of all accidents in 1997 were attributable to disregarded traffic signals, running stop signs, and improper turns. Miss Voss urged the Committee to pass H.B. 2327.
Vice Chairman Cooley also shared the loss of his own son due to an automobile accident and asked Miss Voss if the option for civil litigation is not sufficient punishment to a red-light runner. Miss Voss stressed that most forms of civil litigation in cases such as this are against insurance companies and not directed at the perpetrator.
Chairman Overton acknowledged the presence of those who support H.B. 2327 and did not speak: Terry Sills, President, Phoenix Law Enforcement Association, Eric Edwards, Legislative Liaison, Arizona Association of Chiefs of Police and Phoenix Police Officers, Lorraine Brown, Manager, Policy, Motor Vehicle Division (neutral)
Jerry G. Landau, Special Assistant, Maricopa County Attorney’s Office, explained … punishment would be mandatory, and clarified that it is in the form of a “civil sanction” and not a criminal penalty.
28-672 Legislative History
(longer list below in a comment) Here’s some legislative history of §28-672, (now) a misdemeanor charge “Causing Death/serious injury by Moving Violation”; it is pretty recent, it’s only been around since 1998, and initially had a short list of enabling violations: red-light running, bad left turn, and running stop signs. HB2327 43rd Legislature 2nd Regular session; Chapter 243, signed May 1998. The new law was initially a civil (not criminal) violation.
Notably, 28-672 was “criminalized” quite recently (47th 2nd regular session HB2208, this was probably 2006) before that it was a civil-only penalty.
The enumerated list of enabling statutes is the most subject to augmentation:
1998 (initial law): 645A3(a), 772, and 855B .
2004, added: 792, 794, 797E6
2006, added: 857A (HB2389)
2007, added: 857A (HB2052) (identical change by both bills for school buses)
2008, change 797 sections (probably for consistency with modifications to 797?)
2010, added: 729, 771, 773
2012 — added provision to lengthen statute of limitations to 2 years; previously the time limit would have been the default, 1 year, for misdemeanors. (HB2241 50th 2nd Regular; Chaptered Bill)
2018 — “Pam’s Law”
28-672, 675 & 676 was updated in 53rd2nd legi HB2522 (2018) It generally makes penalties stiffer while maintaining the underlying laws. Direct link to 53rd2nd chapter 310, and the .pdf version. This was done in the aftermath of the killing of Pamela Hesselbacher in a crosswalk by a red-light runner .
2019 — “Handheld Ban”
added 28-914 as a predicate violation for 28-672 (but failed to add it to 675/676? Seems like a drafting error?) See here for details, 59th R1 HB2138.
So suggesting changes to this section is not predisposed to failure. I would like to see the enhanced penalties for 28-735 dropped (i.e. eliminate sections B and C entirely) and to have it added to the list of violations.
In reviewing (the now) 23 years of history with this law, and its many, many changes — I would suggest that it has become a de facto vehicular homicide law, which Arizona lacks.
Current List of Infractions
Here is the current (as of changes made in 2019) list of enabling infractions, sometimes referred to as the predicate traffic violations:
- §28-645(A)3(a): Running a red light
- §28-729: failure to drive in one lane
- §28-771: failure to yield to vehicle on the right (generally applies to uncontrolled intersections)
- §28-772: Bad left at intersection (see ars fixes, should include any left turn)
- §28-773: drive out at stop sign (see also, 855B, below).
- §28-792: Running down a pedestrian in a marked OR UNMARKED crosswalk
- §28-794: Not exercising due care around a pedestrian
- §28-797 subsection F, G, H, or I: Disobeying various school zone rules
- §28-855(B): Running a stop sign
- §28-857(A): Disobeying school bus stop signs
- §28-914: Handheld Electronics Ban. but see above: was only added to 672, and not 675/676? Drafting error?
Note that up until the addition of 28-914 in 2019, the list of predicate violations was the same for 28-672, 675 and 676.
Mens Rea / Strict Liability
28-672 has no mental status requirement. See more about mental status reequipments at knowingly; a law which has no mental status requirement is referred to as being “strict liability”. A driver either did the predicate violation or not; it’s irrelevant why they did it. Note that although the underlying violations are all civil, and not criminal, it must be proven to beyond a reasonable doubt standard; which is a more stringent standard that would normally apply to civil violations (“a preponderance of the evidence”).
A couple of recent Court of Appeals opinions cloud this issue but just slightly; and it remains a strict liability crime… Phoenix City Prosecutor’s Office v. Nyquist, 243 Ariz. 227(App. 2017) “We hold that the offense is a strict liability offense that does not require proof of any culpable mental state”
Longer Statute of Limitations
28-672 has a 2-year statute of limitations (as of 2012; see subsection H), instead of 1 year for most misdemeanors. The general statute of limitation rules for felonies, misdemeanors and petty offenses are set forth in §13-107; while civil traffic offenses have their own time limits in §28-1592. So, the time limit for issuing any civil violation in any relevant crash would be either 180 days (if not involving death), or 1 year if a fatality resulted. Charging a 672 beyond that time can still be done, up to 2 years, it will just not include any underlying civil violation.
It would be interesting to know the genesis of why the time limit was extended to 2 years (HB2241 in 2012).
More about 28-672
There is some more discussion of 28-672 at: so-youve-killed-somebody-with-your-car-now-what including the definition of how a “serious physical injury” is defined.
It’s worth pointing out that a minor crime like 28-672, unlike, say, negligent homicide or manslaughter, will be handled by city attorney’s offices and are adjudicated in municipal or justice courts, and not in county superior court.
Beyond a Reasonable Doubt & Constitutionality
There has been at least one appeal to superior court contending the statute is itself unconstitutional; see Arizona v. Vicki Lynn Darnell. (Maricopa County Superior Court case LC2012-000536 in an un-published opinion; see “lower court appeals“)
The appeal was unsuccessful, it does note, however that the state must prove all elements of the case, including the predicate civil charge, to the standard of beyond a reasonable doubt, and not merely by a preponderance of the evidence.; which in this particular case, the upper court found that the lower court did in fact find that.
28-672, Right to Jury Trial(?)
[2021 UPDATE: but wait, there’s a 2021 Court of Appeals update that changes things, in some instances, 28-672 IS jury eligible if the case involves both death (not serious injury) and the predicate violation is “failure to exercise due care” around a pedestrian. See Bridgeman v. Certa, 251 Ariz. 471 (App. 2021) below. ]
Actually I’m not really sure, but it seems safe to assume a 28-672 charge does not have a right to jury trial because of the maximum jail penalty involved. As background: violation of 28-672 is a class 3 misdemeanor, the lowest level misdemeanor, class 1 being the most serious. §13-707 lists allowable misdemeanor jail sentence and §13-802 sets the maximum fine ; unless some sort of repeat or additional crime is involved, a class 3 routinely does result in any jail sentence since the law stipulates “within the following maximums”; i.e. there is no minimum. The theoretical maximum is 30 days in jail Some other statute sets forth a monetary maximum fine (and 28-672 can also involve restitution, i.e. monies paid by the criminal to the victim). According to nolo: “For purposes of this right (to a jury trial), a serious offense is one that carries a potential sentence of more than six months’ imprisonment. (Baldwin v. New York, 399 U.S. 66 (1970)”
[This needs to be updated for the law change in 2018: 28-672 has been upgraded to a class 1 misdemeanor; theoretical maximum of 6-months in jail; according to the Baldwin rule mentioned above, it would still not be jury trial eligible]
By contrast Reckless driving, 28-693 a class 2 misdemeanor, is jury eligible Urs v. Maricopa County Attorney’s Office the court held that the charge was a jury-eligible offense at common law (at the time of statehood), and therefore a right to jury was preserved; This is mentioned specifically several times in the more recent Derendal v. Griffith/Phoenix City Court, an Arizona State Supreme Court case regarding street racing. There was an interesting side-note from that case: “… the Arizona legislature abolished all common law crimes more than thirty years ago, see A.R.S. § 13-103.A (1978)”. hmmm, so that’s where that all-criminal-law-in-AZ-is-statutory stuff comes from, I guess.
Anyway, despite street racing 28-708 being the more serious (class 1) misdemeanor; the court held that there was no existing analagous offense at statehood (and thus isn’t guaranteed a jury due to that “prong”) and was not otherwise serious enough to warrant a jury.
The court has also, and consistently held that it “recogniz(es) driving as a privilege rather than a right and holding that the ‘potential loss of the driving privilege [was not] a grave or serious consequence’ ”. In other words, in case anyone was wondering, the possibility of a driver’s license suspension (which is true for all these misdemeanor driving offenses: 28-672, as well as reckless driving, and street racing) is not a back-door way of getting a right to jury trial… Even though a suspension could have obviously severe individual consequences — consider anyone who is employed as a driver — the court held that “we will consider only those consequences that apply uniformly to all persons convicted of a particular offense”
Long and possibly interesting lawerly article by George Anagnost in Arizona Attorney magazine micro-analyzes the “inviolate” right to jury situation.
A couple of media stories:
Irma Quintana Fatality
There’s nothing surprising or novel about this particular case in Laurie Robert’s recent column (if that link doesn’t work, check her blog), except perhaps its flagrance. A habitual speeder is speeding, red-light runner killed somebody. The 25 y.o. male killer (curiously not named, why?) according to the victim’s family’s attorney “says the SUV driver had eight prior speeding tickets and had been cited three times for driving without insurance before the April crash – when he also apparently had no insurance…(and) cited four times for driving with a suspended license”
The class 3 misdemeanor refers to §28-672 which recently changed to allow for criminal charges. Prior to 2007, the law didn’t even allow for any criminal charge, only enhanced civil penalties. (also see §28-675 / §28-676 which offer enhanced penalties if the injury/death was caused by a driver who is “not allowed to operate a motor vehicle…”, i.e. suspended license).
A class 3 misdemeanor normally implies no jail time whatsoever, and the maximum license suspension for death is 180 days — really, can’t we do any better for the sake of justice and public safety?
I added the photo enforcement tag because the red light camera evidence was instrumental in disproving the driver’s claim that he had a green light.
Jenna Eades Fatality
A few days later, Roberts did the Jenna Eades fatality in her column. (blog link). As Roberts wrote in summary: “In Maricopa County, you can kill someone with your car and get away with it as long as you aren’t drunk or high. Here, there is no consequence, no price to be paid.”
“Maybe some day, somebody will be able to explain to her [Haley who survived but had serious injuries] how the man who took away her sister hasn’t gotten so much as a traffic ticket.” The official answer as to why there would be no traffic citation is explained here, Double Jeopard and flawed logic.
A mother’s death, a son’s loss deepens
by Laurie Roberts – Jan. 24, 2009 12:00 AM
The Arizona Republic
Just after 9 p.m., Ruben was headed west on Broadway when a southbound SUV, having just come off the Hohokam Expressway, ran the red light at 48th Street. The 25-year-old driver told police he had a green light and was going the speed limit. However, witnesses disagreed, as did the red-light camera that snapped him as he blew through the intersection.
According to Tempe police, the light had been red for 7.83 seconds when he came through, doing 48 mph in a 35 mph zone. Put another way, he was 550 feet from the intersection when that light turned red. Police said he had “more than adequate distance” to stop.
No alcohol or drugs were involved.
“He wasn’t impaired,” spokesman Mike Scerbo told me. “He didn’t flee the scene. It was not considered reckless behavior. It’s tragic, but it can’t be qualified as a felony.”
Not reckless, to be going 48 mph in a 35 zone, even though you’ve driven over four “rumble strips” to alert you to slow down? Not reckless, when the light had been red for nearly eight seconds? Count out eight seconds to see just how long that is.
Ruben’s (the victim) attorney, Clifford Heiney, says the SUV driver had eight prior speeding tickets and had been cited three times for driving without insurance before the April crash – when he also apparently had no insurance.
Heiney said he had been cited four times for driving with a suspended license, though police said he had a valid license in April.
Scerbo told me prosecutors have sent the case to the Tempe city attorney, recommending that the driver be charged with a Class 3 misdemeanor for killing Irma Quintana.
A Class 3 misdemeanor.
If convicted, the driver would have to go to traffic school and pay a fine. He even could see his license suspended.