Category Archives: Vehicular Homicide

Increased DUI Patrols for Apple Cup & Thanksgiving

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The emphasis patrols will run Thursday through Nov. 25, focusing on WSU students who are traveling for the Thanksgiving break and the Apple Cup in Pullman Nov. 23.

Troopers in Spokane, Whitman, Adams, Grant and Kittitas counties will be homing in on speeding-related infractions, including driving too fast for conditions, distracted/impaired driving, and violations that could cause a collision.

The patrol says motorists traveling to and from the WSU campus will see an increased presence on state routes 26 and 195, as well as on Interstate 90 over Snoqualmie Pass.

“Students traveling across the state should make sure to prepare their vehicles for winter travel conditions. A small emergency kit with water, food, blankets, winter clothing and emergency flares are a good idea,” states the Patrol. “Make sure all the fluids in vehicles are full and the vehicle’s battery is in good working order. Good all-season or snow tires, as well as tire chains are advised and may be required when traveling over the mountain passes.”

To check up on road and weather conditions on state highways, visit the Washington State Department of Transportation’s website at www.wsdot.wa.gov or download WSDOT’s mobile app.

My opinion? In addition to enforcing DUI emphasis patrols, troopers will also focus on distracted driving violations. Washington’s new distracted driving law, which went into effect in July, sets a fee schedule for drivers who are found to be driving while distracted. The law states drivers are not allowed to use a hand-held device while driving, stopped in traffic or at a stoplight. Violators of the law could face a $136 fine.

Please contact my office if you, a friend or family member are charged with crimes or infractions involving DUI, Reckless Driving or Distracted Driving, etc.

I’m happy to help and consultations are free.

Vehicular Homicide

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In State v. Frahm, the WA Court of Appeals held the defendant was properly convicted of vehicular homicide for the death of a Good Samaritan who was struck by another vehicle while rendering assistance to the occupant of the vehicle that was initially struck by the defendant’s vehicle. The defendant’s rear-ending of the first vehicle proximately caused the death of the Good Samaritan.

BACKGROUND FACTS

Shortly before dawn on December 7, 2014, a Ford F-150 truck driven by Frahm rear-ended a Honda CR-V sport utility vehicle (SUV) driven by Steven Klase. The impact caused the SUV to spin out of control, strike a concrete barrier in the freeway median, and come to rest partially blocking the left and middle lanes of I-205. Klase sustained serious injuries and remained in his vehicle. Frahm fled the scene.

An eyewitness, Richard Irvine, stopped his vehicle on the right shoulder. Irvine activated
his vehicle’s emergency flashers, exited his vehicle, and crossed the freeway on foot. Seeing Klase’s injuries, Irvine called 911. While Irvine spoke with a 911 dispatcher, a Honda Odyssey minivan driven by Fredy Dela Cruz-Moreno approached in the left lane. Cruz-Moreno’s minivan struck Klase’s vehicle and propelled it into Irvine. As a result, Irvine died.

Later that same day, Frahm, the registered owner of the F-150, contacted police to report
his vehicle as stolen. When the police later recovered Frahm’s truck, it had front end damage. The police processed the vehicle, and Frahm’s DNA (deoxyribonucleic acid) matched DNA taken from the deployed airbag.

The police interrogated Frahm, and he maintained both that his truck had been stolen and that he had not been driving at the time of the accident. In February 2015, a witness, Dusty Nielsen, contacted the police. Nielsen provided an alibi for Frahm for the time of the accident. Nielsen lied. Frahm had not been with Nielsen the night of the accident. The two men did not know each other until they met in jail, after the accident.

When questioned by police about discrepancies in his story, Nielsen recanted. He insisted that he alone came up with the idea to provide the false alibi. The State charged Frahm with six crimes: vehicular homicide, manslaughter in the first degree, vehicular assault, hit and run, false reporting, and conspiracy to commit perjury in the first degree.

At trial, and without objection, the State played an unredacted recording of Frahm’s
interrogation by the police. During the interrogation, the police repeatedly accused Frahm of lying. Frahm admitted to drinking the night before the accident but iterated that somebody stole his truck, and that he was not the driver at the time of the accident.

The jury convicted Frahm of vehicular homicide, vehicular assault, hit and run, false
reporting, and conspiracy to commit perjury. Frahm appealed.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals held that sufficient evidence supported Frahm’s Vehicular Homicide conviction. It reasoned that a driver is guilty of vehicular homicide when the death of any person ensues within three years as a proximate result of injury proximately caused by the driving of any vehicle by any person. Furthermore, “legal causation” involves a determination of whether liability should attach as a matter of law given the existence of cause in fact.

“If the factual elements of the tort are proved, determination of legal liability will be dependent on ‘mixed considerations of logic, common sense, justice, policy, and precedent,” said the Court.

The Court further reasoned that a defendant’s conduct is a proximate cause of harm to another if, in direct sequence, unbroken by any new independent cause, it produces the harm, and without it the harm would not have happened. Here, the issue was whether any rational jury could find the essential elements of the crime of Vehicular Homicide beyond a reasonable doubt.

“Although this specific victim may not have been foreseeable, the general field of danger was clearly foreseeable. And the record as a whole supports that a reasonable jury could find beyond a reasonable doubt that Frahm’s rear-ending Klase’s vehicle proximately caused Irvine’s death.”

Second, the Court of Appeals held that sufficient evidence supports the charge of Conspiracy to Commit Perjury.

The Court said a person is guilty of conspiracy if, with the intent to commit a crime, he or she agrees with one or more persons to engage in or cause the performance of such [criminal] conduct, and any one of them takes a substantial step in pursuance of such agreement. Consequently, making “materially false” statements to police who are conducting investigations is a crime.

“Nielsen and Frahm met in jail,” said the Court of Appeals. “They hatched the plan to provide Frahm with a false alibi.” The Court further explained that Frahm provided Nielsen with the details necessary to make the lie appear more credible, including a description of his truck’s interior on the night of the accident. “When viewing the evidence and its reasonable inferences in a light most favorable to the State, sufficient evidence supports Frahm’s conspiracy conviction,” said the Court.

Finally, the Court rejected Frahm’s arguments that his defense counsel was ineffective and his speedy trial rights were violated. With that, the Court of Appeals upheld Frahm’s convictions.

My opinion? First, my sympathies to all parties involved. This case is tragic for all sides. Second, this case presents an interesting blend of criminal and tort law – specifically, negligence – which is not typically seen in everyday court. Issues of duty, breach of duty, proximate cause and damages rarely arise in criminal statutes. Typically, the State need only probe intent and not negligence. However, the specific language of the vehicular homicide statute includes criminal liability for negligent acts.

Please contact my office if you, a friend or family member face criminal charges. Hiring competent counsel is the first step toward achieving a just result in court.

Driverless Cars for Crime?

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Informative article by Tim Johnson of McClatchy DC Bureau reports that driverless cars could potentially be used by criminals, hackers and terrorists who want to employ them for mayhem and criminal purposes.

“Self-driving cars may enable new crimes that we can’t even imagine today,” said Patrick Lin, director of the Ethics + Emerging Sciences Group at California Polytechnic University.

Johnson reports that the manufacture of self-driving cars is already underway among major automakers and Silicon Valley tech giants, and a handful of current models allow limited hands-free driving and even park themselves. Before long, experts say, totally autonomous vehicles will hit the roads, starting with taxis and fleet delivery vehicles.

The clearly visible potential danger, Lin and others say, focuses on vulnerability to hackers who could turn driverless autos into vehicles for mayhem if not into weapons themselves.

CAN ELECTRONIC CARS BE “TAMPER-PROOF?”

Lots of questions remain over whether the electronic systems of self-driving vehicles can be made tamperproof, and if humans aboard will be able to override if systems go haywire.

Some engineers say glitches are common and adoption is likely to be gradual.

“Most people don’t understand how easy it is to hack into a driverless car, and then basically steer it off course,” said Dr. Mary Cummings, a former Navy fighter pilot who heads the Humans and Autonomy Laboratory at Duke University’s Pratt School of Engineering.

Cummings said she views hackers as a greater threat than criminals or terrorists when it comes to autonomous vehicles.

“There’s no way I’d put my kid in a driverless car right now,” Cummings said.

THE FBI’s CONCERNS

Johnson reports that the FBI, in an unclassified report obtained by The Guardian in 2014, voiced concerned about how “game changing” autonomous cars may become for criminals, hackers and terrorists, turning the vehicles into more potentially lethal weapons than they are today. An FBI spokesperson did not immediately respond to a query about the impact of autonomous cars on law enforcement.

“The FBI is already worried about robo-getaway drivers, which frees up a suspect to shoot back,” Lin said. “Criminals might be able to make a better escape, if a road full of self-driving cars will always move out of the way when you threaten a collision.”

Criminals might commandeer self-driving vehicles and trap passengers inside until they pay a ransom, Lin said, or use camera-equipped models to case robbery locations over longer periods since the cars don’t need to eat or sleep. They can ditch accomplice drivers, who often have loose lips, as they conduct crimes.

Society still has to decide how much invasive technology it will permit in self-driving cars in the name of safety, experts said. Should they contain sensors to detect explosives or narcotics to halt terrorism and crime? Cameras to record what happens inside the vehicles?

“If law enforcement pulls over an empty self-driving car that’s carrying contraband, they can likely track down the user,” Lin said. “Cars aren’t as disposable as burner phones.”

HACKERS & TERRORISTS

Johnson reports that fears that hackers or terrorists could commandeer vehicles captivate the common imagination, fueled by Hollywood. Last year’s hit “The Fate of the Furious,” which tallied $1.1 billion in box office earnings, portrayed elite hackers guiding hundreds of cars speeding down New York’s Seventh Avenue, turning them into battering rams.

A less cinematic scenario, experts say, is that terrorists might use only one or two autonomous vehicles in an attack, perhaps blocking a tunnel leading into a metropolis to divert attention from a pending attack elsewhere in the city.

Terrorists might seek to program autonomous vehicles to carry out attacks far in the future, with explosives or as a weapon to plow into crowds.

“Can I instruct a car to do something a year in advance? What if I’ve been dead for most of that year?” asked Martin C. Libicki, an information technology and national security expert.

Such fears tend to eclipse consideration of how self-driving vehicles are bound to lead to a steady, dramatic drop in traffic fatalities. In 2016, 37,461 people died in traffic accidents.

“All of these things are evaluated through a political filter. Nobody writes headlines about the person who didn’t die in an auto accident. Everybody will write headlines about the person who died because of a self-driving car,” Libicki said.

The vast majority of fatalities are caused by drivers who are distracted, drunk, not wearing seat belts, sleepy or otherwise not paying full attention.

“Ninety-four percent of all crashes have an element of human error. We’re talking about enormously significant numbers,” said David Strickland, counsel for the Self-Driving Coalition for Safer Streets, a group representing companies like Ford, Uber, Lyft and Volvo developing autonomous vehicles.

“This is going to sound cold hearted,” began Arthur Rizer, director of criminal justice at R Street Institute, a conservative think tank in Washington, but the terrorist danger from autonomous vehicles “is minute compared to the lives that we will save just from reducing traffic accidents.”

Rizer said police departments across the country might face a drop in income as traffic fines and tickets decrease. Self-driving vehicles will be programmed to obey traffic laws. Traffic tickets cost drivers an average of $150.

“Revenue will plummet. Also, court revenues will plummet because courts make a lot of their money off of fees,” said Rizer, a former police officer and Justice Department prosecutor. Rizer said reducing the focus of police on traffic violations will certainly be part of a changing landscape for police forces brought about by autonomous vehicles. But he said police, too, will be freed somewhat from traffic patrols.

Yet to be seen is whether law enforcement will be empowered with remote “kill switches” for officers to use if they deem a self-driving vehicle to be operating suspiciously.

Lin concurred that as resources shift, police tactics will also need to shift.

“The police will no longer have a pretext for stopping a car if the vehicle never speeds, never drives recklessly, and so on,” Lin said. “Resources for highway patrols could be shifted to more targeted operations, if fewer traffic cops are needed.”

Fourth of July is One of the Deadliest Days For Drunk Driving

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Excellent news article by reporter German Lopez of Vox discusses how the Fourth of July is among the deadliest days for drunk driving every year, thanks to people both drinking and driving more.

According to an analysis by the Insurance Institute for Highway Safety using data from the Fatality Analysis Reporting System, between 2010 and 2014, July 4 had the second highest percent of car crash deaths that were linked to alcohol, and July 3 was also in the top 10.

Lopez gives a scale on how the 10 deadliest days broke down, with the percentage noting how many of the car crash deaths involved a blood alcohol level of 0.08 g/dL or more:

  1. January 1: 62 percent (364 of 591 car crash deaths)
  2. July 4: 47 percent (278 of 592 car crash deaths)
  3. December 24: 41 percent (191 of 461 car crash deaths)
  4. February 6: 41 percent (151 of 366 car crash deaths)
  5. July 24: 41 percent (207 of 502 car crash deaths)
  6. July 3: 41 percent (219 of 533 car crash deaths)
  7. March 9: 41 percent (161 of 396 car crash deaths)
  8. December 25: 41 percent (137 of 338 car crash deaths)
  9. April 21: 40 percent (176 of 435 car crash deaths)
  10. April 17: 40 percent (176 of 438 car crash deaths)

Also, Lopez reported that although drunk driving deaths have plummeted over the past few decades. In 1981, drunk driving killed more than 21,000 people. By 2015, that figure was cut in half. An array of reforms played a big role in that reduction, including raising the legal alcohol age to 21, pushing police to take the enforcement of drunk driving laws much more seriously, and general improvements in car and traffic safety.

But much of that action happened in the 1980s and ’90s, when MADD and other advocacy groups came together in a strong, well-funded effort to take drunk driving more seriously. Since then, the issue has fallen off the national radar.

 Alcohol’s problems extend far beyond drunk driving as well. Alcohol is linked to at least 88,000 deaths in the US each year, only about an eighth of which are driving-related. That estimate comes from 2006 through 2010, but more recent data suggests that at least some alcohol deaths are trending up: Between 2010 and 2015, the number of alcohol-induced deaths (those that involve direct health complications from alcohol, like liver cirrhosis) rose from less than 26,000 to more than 33,000.

Based on the research, there is also a lot more that America could be doing to prevent alcohol-related deaths — yet there is little media or public attention to this issue, so there is little pressure for lawmakers to put this research into action. The result is that one of the big causes of death in America continues to kill thousands of people a year.

DEALING WITH INCREASED DEATH TOLLS RELATED TO ALCOHOL ABUSE.

Lopez points out that when Americans think about alcohol policy, the first thing that comes to mind is probably Prohibition, which effectively banned the manufacture and sale of alcohol from 1920 to 1933. That solution, of course, did not work. Still, Lopez suggests the following other policies could help address the negative safety impacts of drinking.

  • A higher alcohol tax: A 2010 review of the research in the American Journal of Public Health came out with strong findings: “Our results suggest that doubling the alcohol tax would reduce alcohol-related mortality by an average of 35%, traffic crash deaths by 11%, sexually transmitted disease by 6%, violence by 2%, and crime by 1.4%.”
  • Reducing the number of alcohol outlets: A 2009 review published in the American Journal of Preventive Medicine also found that limiting the number of alcohol outlets (such as liquor stores) in an area through stricter licensing, for example, can limit problematic drinking and its dangers. But it also found that going too far can have negative results — by, for example, causing more car crashes as people take longer drives to outlets and possibly drink before returning home.
  • Revoking alcohol offenders’ right to drink: South Dakota’s 24/7 Sobriety programeffectively revokes people’s right to drink if a court deems it necessary after an alcohol-related offense. The program, specifically, monitors offenders through twice-a-day breathalyzer tests or a bracelet that can track blood alcohol level, and jails them for one or two days for each failed test. Studies from the RAND Corporation have linked the program to drops in mortality, DUI arrests, and domestic violence arrests.
  • Put state governments in charge of selling alcohol: A 2014 report from RAND concluded that when state governments monopolize alcohol sales through state-run shops, they can keep prices higher, reduce access to youth, and reduce overall levels of use.

These are just a few of the ideas that experts have put out there. There are many more ways to curtail alcohol consumption and misuse without outright banning it.

Maybe these policies still go too far for some people. Different individuals will likely disagree on whether these proposals go too far in restricting personal liberty, even if they do save some lives. But the research suggests such policies are at least worth considering.

Yet lawmakers have paid very little attention to alcohol policy. As Philip Cook, a public policy expert at Duke University who wrote Paying the Tab: The Costs and Benefits of Alcohol Control, told Mr. Lopez, the last time Congress raised the federal alcohol tax was 1991 — and that has let the actual impact of the tax erode due to increasing inflation:

“The great opportunity we have is to restore taxes to the real value that they had a few decades ago. That’s justified by the current social costs of drinking, and would have all kinds of beneficial effects, while being justified just from the point of view that drinkers should pay for the damage that they do.”

My opinion? I share Mr. Lopez’s argument that part of the problem is that policymakers just don’t feel much pressure to act on these kinds of public health problems — at least in the same way they feel compelled to act on an issue like, say, terrorism. So thousands of needless deaths continue happening in America every year, including hundreds this Fourth of July.

However, if you; a friend or family member is pulled over for alcohol-related driving, contact a qualified, competent criminal defense attorney as soon as possible. The consequences of DUI – ranging from jail, to high court fines to suspended/revoked drivers  licenses are too great to be trifled with.

Strict Liability Offenses

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In State v. Burch, Division II of the WA Court of Appeals held that in order to convict a defendant of vehicular homicide or vehicular assault, the State need not prove that a driver acted with ordinary negligence in the operation of a motor vehicle if it merely proves that the driver was under the influence of alcohol or drugs while driving that vehicle.

In December 2014, Burch was driving across an icy bridge when her truck spun out, slid off the road, and hit two men who were investigating the scene of an earlier accident. One of the men died and the other received serious injuries, including multiple broken bones and a severe ear laceration. Burch was uncooperative with law enforcement officers who responded to the scene. During their contact with Burch, the officers noticed that she smelled strongly of intoxicants.

They restrained Burch and brought her to a hospital to draw blood to test for intoxicants. Testing of that sample showed a blood alcohol concentration of .09, indicating a concentration between .11 and .14 two hours after the accident. The State charged Burch with vehicular homicide and vehicular assault, alleging that she drove or operated a motor vehicle while under the influence of intoxicating liquor or any drug or any combination of the two, in a reckless manner, and with disregard for the safety of others.

The jury found Burch guilty of both vehicular homicide and vehicular assault. In special verdicts, the jury found that Burch had driven while under the influence of intoxicating liquor or drugs, but had not driven recklessly. However, the jury was unable to agree as to whether she had driven with disregard for the safety of others. Burch appealed her convictions.

The Court of Appeals addressed the sole issue of whether the crimes of vehicular homicide and vehicular assault committed while under the influence of alcohol or drugs require the State to prove ordinary negligence in addition to the fact that the defendant was under the influence of alcohol or drugs.

Here, the Court of Appeals disagreed with Burch’s arguments that ordinary negligence is an element of vehicular homicide by driving under the influence of alcohol or drugs.

The Court also reasoned, “Offenses that criminalize a broad range of apparently innocent behavior are less likely to be strict liability offenses.  However, vehicular homicide committed by a driver under the influence encompasses little, if any, seemingly innocent conduct:

“Driving under the influence of alcohol or drugs is itself a serious criminal offense. RCW 46.61.502(1). Therefore, operating a motor vehicle under the influence is rarely, if ever, innocent behavior. Because vehicular homicide while under the influence of intoxicating liquor or drugs requires the State to prove the facts of both impairment and operation of a motor vehicle, the crime necessarily encompasses primarily or solely criminal behavior.”

For those who don’t know, a “strict liability offense” strict liability exists when a defendant is in legal jeopardy by virtue of an wrongful act, without any accompanying intent or mental state.  In criminal law, possession crimes and statutory rape are both examples of strict liability offences.

With that, the Court of Appeals held that the legislature intended to impose strict liability for vehicular homicide while under the influence of alcohol or drugs: “These considerations, along with the analysis of relevant statutory language above, lead to a single conclusion: the trial court did not err by instructing the jury that it could convict Burch without finding ordinary negligence or any other culpable mental state.”

The Court also held that the legislature intended vehicular assault by driving under the influence to be a strict liability offense, and that the trial court did not err by instructing the jury that it could convict without finding that Burch acted with ordinary negligence.

My opinion? Vehicular Homicide and Vehicular Assault are particularly difficult to mount a legal defense against given the “strict liability” facets of the law. The prosecution does not need to prove intent as long as the offender had drugs or alcohol in their sytstem at the time of the offense. Period.