WPIC 94.04 Excessive Speed—Inference of Driving in a Reckless Manner

RCW 46.61.465.

Statutory treatment of excessive speed. RCW 46.61.465 provides that speed in excess of the maximum speed under the circumstances described constitutes “prima facie evidence” of operation of the vehicle in a reckless manner.

“Prima facie” evidence generally. Historically, statutes addressing prima facie evidence have sometimes been construed as creating inferences or presumptions. See, e.g., State v. Person, 56 Wn.2d 283, 352 P.2d 189 (1960), overruled on other grounds by State v. Rogers, 83 Wn.2d 553, 520 P.2d 159 (1974); State v. Rouw, 156 Wash. 198, 286 P. 81 (1930); State v. Malone, 9 Wn.App. 122, 511 P.2d 67 (1973). Like other presumptions, a conclusion based on prima facie evidence is generally considered to be not binding on the jury and is only one factor to be considered in reaching a verdict. See State v. Roberts, 88 Wn.2d 337, 562 P.2d 1259 (1977); State v. Person, 56 Wn.2d 283, 352 P.2d 189 (1960), overruled on other grounds by State v. Rogers, 83 Wn.2d 553, 520 P.2d 159 (1974); State v. Thomas, 58 Wn.2d 746, 364 P.2d 930 (1961), overruled on other grounds by State v. Rogers, 83 Wn.2d 553, 520 P.2d 159 (1974); City of Olympia v. Sprout, 5 Wn.App. 897, 492 P.2d 586 (1971).

Even if such statutes actually do create presumptions or inferences (as opposed to merely governing the sufficiency of the State's evidence to survive a motion to dismiss), then practitioners should carefully consider the risks involved in instructing jurors on these matters. See the discussion of inferences and presumptions later in this Comment and in the Comment to WPIC 6.25 (Presumed to Intend Natural Consequences of Acts).

Application of statute to this offense. Prior to 2003, RCW 46.61.465 had no application to the offense of attempting to elude a police vehicle, because the offense at that time did not include “driving in a reckless manner” as one of its elements. Former RCW 46.61.024. In 2003, the offense was redefined to use the term “driving in a reckless manner.” Laws 2003, Chapter 101, § 1 (effective July 27, 2003). Accordingly, the inference set forth in RCW 46.61.465 is now relevant to the offense of attempting to elude a police vehicle.

Inferring reckless manner from excessive speed—caution about jury instruction. Appellate cases have held that, depending on the facts in the case, jurors may be instructed that they may infer driving in a reckless manner from excessive speed, using the language of RCW 46.61.465. State v. Hanna, 123 Wn.2d 704, 871 P.2d 135 (1994), (grant of habeas corpus affirmed by Hanna v. Riveland, 87 F.3d 1034 (9th Cir. 1996)). The risk of erroneously instructing the jury is demonstrated by the history of Hanna. See also State v. Kenyon, 123 Wn.2d 720, 871 P.2d 144 (1994).

An instruction based on RCW 46.61.465, however, should be used in only a narrow range of cases. The statutory language allows an inference of driving in a reckless manner to be based on excessive speed alone, yet it is “the rare case” when excessive speed alone justifies the inference of driving in a reckless manner. State v. Randhawa, 133 Wn.2d 67, 78, 941 P.2d 661 (1997); see State v. Farr-Lenzini, 93 Wn.App. 453, 970 P.2d 313 (1999) (cautioning trial courts to use particular care in examining the evidence before instructing on this inference). This is because a permissive inference is constitutional only when the presumed fact flows “more likely than not” from the proof of the basic fact. See the discussion of inferences in the Comment to WPIC 6.25 (Presumed to Intend Natural Consequences of Acts).

For these reasons, the WPI Committee recommends against use of an instruction based on RCW 46.61.465.