Vehicular homicide | Atlanta DUI lawyer

An Atlanta dui lawyer knows O.C.G.A. § 40-6-393(a) and (b) provides:

(a) Any person who, without malice aforethought, causes the death of another person through the violation of subsection (a) of Code Section 40-6-163, 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 first degree and, upon conviction thereof, shall be punished by imprisonment for not less than three years nor more than 15 years.

(b) Any driver of a motor vehicle who, without malice aforethought, causes an accident which causes the death of another person and leaves the scene of the accident in violation of subsection (b) of Code Section 40-6-270 commits the offense of homicide by vehicle in the first degree and, upon conviction thereof, shall be punished by imprisonment for not less than three years nor more than 15 years.

These two sections are 2008 amendments by Act 793 (2008 SB 529), which became effective July 1, 2008, and applies to all offenses committed on or after such date. Contact an Atlanta dui lawyer today for a free consultation.

As is often the case, once the Government loses a case based upon an adverse appellate decision, the Legislature "adjusts" the language of the existing statute to prevent another acquittal from occurring. The appellate case that triggered this revision of subsection (b) of O.C.G.A. § 40-6-393 was Henry v. State, 284 Ga. App. 893, 645 S.E.2d 32 (2007). The clear purpose of this change in statutory language is to relieve the state from proving that the defendant's "departure" from the scene was the "action" that led to the death.

If a felony vehicular homicide was either committed by an HV driver or with its predicate “serious driving” offense being a violation of O.C.G.A. § 40-6-391 (drunk driving), the conviction will result in 90% of any sentence being served. This is the Pardons and Paroles guideline for convictions on or after January 1, 1998. Any other predicate, serious driving offense (e.g., “hit and run,” reckless driving, attempting to elude) does not trigger the “90% guidelines.” This is a “guideline,” but Pardons and Paroles will typically depart higher, not lower, for these serious offenses. See O.C.G.A. § 42-1-40 which gives Pardons and Paroles these broad powers. This distinction may make a huge difference in plea negotiations in some cases, since disposing of the case on a non-DUI predicate offense offers the chance for a much earlier release from prison. One federal court has struck down any retroactive application of this guideline. Jackson v. State Bd. of Pardons & Paroles, 2002 WL 1609804 (N.D. Ga. 2002) (Not reported in F. Supp. 2d).

One interesting recent case dealt with this “90%” rule in a habeas proceeding based upon ineffective assistance of counsel. In Smith v. Williams, 277 Ga. 778, 596 S.E.2d 112 (2004), trial counsel admittedly told the defendant that his 15 year sentence to first degree vehicular homicide could lead to early release after 5 years. The habeas corpus action was granted due to deficient performance.

Furthermore, O.C.G.A. § 40-6-393(d) provides:

(d) Any person who, after being declared a habitual violator as determined under Code Section 40-5-58 and while such person's license is in revocation, causes the death of another person, without malice aforethought, by operation of a motor vehicle, commits the offense of homicide by vehicle in the first degree and, upon conviction thereof, shall be punished by imprisonment for not less than five years nor more than 20 years, and adjudication of guilt or imposition of such sentence for a person so convicted may be suspended, probated, deferred, or withheld but only after such person shall have served at least one year in the penitentiary.

To convict for vehicular homicide in the first degree, the State has the burden of showing beyond a reasonable doubt that the defendant, as a consequence of driving recklessly or under the influence of alcohol, caused the death of another person. In Lesh v. State, 259 Ga. App. 325, 577 S.E.2d 4 (2003), the Court of Appeals held that there was sufficient evidence that defendant was driving his vehicle in a manner exhibiting a reckless disregard for the safety of others supporting his conviction of first degree vehicular homicide. The court found that the evidence adduced at trial showed that defendant was distraught and driving his vehicle at 3:30 in the morning, he had consumed alcohol (BAC = 0.068), was driving outside his lane of travel, struck a clearly discernible bicycle with visible reflectors from behind, and did not react by braking his car. See also, Tillery v. State, 225 Ga. App. 89, 483 S.E.2d 333 (1997); Quaile v. State, 172 Ga. App. 421, 323 S.E.2d 281 (1984); Miller v. State, 236 Ga. App. 825, 513 S.E.2d 27 (1999).

The other driver's “condition” is also relevant where he or she may have been impaired. This can allow the defendant to raise the defense of “lack of causation” due to the impairment (or contribution to the cause due to the impairment) of the other driver. A trial court's ruling excluding such relevant testimony is reversible error. Crowe v. State, 277 Ga. 513, 591 S.E.2d 829 (2004).

This causal connection is often the missing or weak link in the State's case. For example, assume that the deceased party was driving through an intersection. The stop sign had been removed or destroyed. The DUI suspect has the right of way, yet a collision occurs due to the missing stop sign. Is the death caused by the DUI? See Williams v. State, 165 Ga. App. 831, 302 S.E.2d 736 (1983). See also David v. State, 261 Ga. App. 468, 583 S.E.2d 135 (2003); Miller v. State, 236 Ga. App. 825, 513 S.E.2d 27 (1999); Watkins v. State, 191 Ga. App. 87, 381 S.E.2d 45 (1989); McNabb v. State, 180 Ga. App. 723, 350 S.E.2d 314 (1986). In such cases an expert on accident reconstruction is critical to your client's chances to win the case (or receive a reduced plea). See Appendix 12, infra, for a list of possible experts.