Vehicular homicide case | Atlanta dui attorney
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Vehicular homicide—Second degree
O.C.G.A § 40-6-393(c) provides:
(c) Any person who causes the death of another person, without an intention to do so, by violating any provision of this title other than subsection (a) of Code Section 40-6-163, subsection (b) of Code Section 40-6-270, 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 second degree when such violation is the cause of said death and, upon conviction thereof, shall be punished as provided in Code Section 17-10-3.
This subsection was amended by Act 793 (2008 SB 529), which became effective July 1, 2008, and applies to all offenses occurring on or after that date.
Defense counsel must prepare and be ready to argue the inclusion of "lesser included" offenses under the second degree vehicular homicide statute whenever he or she has a client facing first degree (felony) charges as outlined in either subsection (a) or (b). Getting the trial judge to charge a lesser included offense can mean a 15-fold difference in punishment for the client, if the jury finds doubt in the felony count under any of the predicate "serious driving" offenses.
In State v. Nix, 220 Ga. App. 651, 469 S.E.2d 497 (1996), the defendant was charged with vehicular homicide in the second degree pursuant to O.C.G.A. § 40-6-393(b). Count one charged the defendant with vehicular homicide due to failure to yield to right of way as required by O.C.G.A. §§ 40-6-21 and 40-6-1. Count two charged the defendant with vehicular homicide due to failure to yield the right of way as required by O.C.G.A. §§ 40-6-71 and 40-6-1. Count three charged the defendant with failure to yield the right of way as required by O.C.G.A. §§ 40-6-21(a)(1)(A) and 40-6-1. Count four charged the defendant with failure to yield the right of way as required by O.C.G.A. §§ 40-6-21(a)(1)(B) and 40-6-1. And Count five charged the defendant with failure to yield the right of way as required by O.C.G.A. §§ 40-6-71 and 40-6-1. The trial court struck Counts 1, 3, 4 because they alleged violation of O.C.G.A. §§ 40-6-21 and 40-6-1. O.C.G.A. § 40-6-21 defines the meaning given to highway traffic signal indications but does not define any violation of the law. In addition, O.C.G.A. § 40-6-1 does not set out any specific violation, but rather states that unless otherwise provided for, it was a misdemeanor to violate any provision of the chapter. Since neither charge sets out a violation of the law, they cannot be the sole basis for a charge of vehicular homicide. The Court of Appeals affirmed.
Counsel for defendant should always look at the constitutionality of the underlying traffic offense. A second-degree vehicular homicide prosecution was stopped short by a pre-trial ruling in State v. Johnson, 270 Ga. 111, 507 S.E.2d 443 (1998).