WPIC 90.02 Vehicular Homicide—Elements

Use bracketed material as applicable. The instruction is drafted for cases in which the jury needs to be instructed using two or more of the alternatives for element (3). Care must be taken to limit the alternatives to those that were included in the charging document and are supported by sufficient evidence. For directions on when and how to draft instructions with alternative elements, see WPIC 4.20 (Introduction) and the Note on Use and Comment to WPIC 4.23 (Elements of the Crime—Alternative Elements—Alternative Means for Committing a Single Offense—Form). For any case in which substantial evidence supports only one of the alternatives in element (3), revise the instruction to remove references to alternative elements following the format set forth in WPIC 4.21 (Elements of the Crime—Form).

With this instruction, use WPIC 90.07 (Vehicular Homicide and Assault—Proximate Cause—Definition). Also use as applicable, WPIC 90.06 (Vehicular Homicide and Assault—Under the Influence or Affected By—Definition) and WPIC 90.05 (Reckless Manner—Disregard for Safety of Others—Ordinary Negligence Distinguished). Use WPIC 98.03 (Traffic Cases—Drug—Definition) if it is necessary to define the term drug, and WPIC 92.12 (Driving or Being in Physical Control While Under the Influence—Alcohol or THC Concentration—Definition). Use WPIC 98.01 (Traffic Cases—Vehicle—Definition) if it is necessary to define the term vehicle.

A special verdict form for this offense is set forth at WPIC 90.03 (Special Verdict Form—Vehicular Homicide and Assault). For a discussion of which concluding instruction to use with the special verdict form, see the Note on Use and Comment to WPIC 90.03.

If the facts on which jurisdiction is based are in dispute, a special verdict form may need to be submitted to the jury. See WPIC 4.20 (Introduction) and WPIC 190.10 (Special Verdict Form—Jurisdiction).

RCW 46.61.520.

Alternative means: Generally. Statutorily, vehicular homicide may be committed by three alternative means. RCW 46.61.520. It is proper to instruct the jury on each of the means charged without requiring jurors to be unanimous on which of the means the prosecution has proven, provided there is substantial evidence to support each of the means. State v. Maurice, 79 Wn.App. 544, 903 P.2d 514 (1995); State v. Tang, 77 Wn.App. 644, 893 P.2d 646 (1995). See also State v. Randhawa, 133 Wn.2d 67, 941 P.2d 661 (1997). See the Comment to WPIC 90.03 (Special Verdict Form—Vehicular Homicide and Assault).

If there is insufficient evidence to support each of the means by which the defendant was alleged to have committed the crime, the verdict must be set aside. State v. Miller, 60 Wn.App. 767, 807 P.2d 893 (1991); State v. McAllister, 60 Wn.App. 654, 806 P.2d 772 (1991). The verdict should stand, however, if there is a “particularized expression” of jury unanimity on an alternative for which there was sufficient evidence. State v. Woodlyn, 188 Wn.2d 157, 165, 392 P.3d 1062 (2017); see WPIC 90.03 (Special Verdict Form—Vehicular Homicide and Assault). For further discussion on instructing when there are alternative means of committing an offense, see WPIC 4.20 (Introduction), and the Comment to WPIC 155.00 (Concluding Instruction—Lesser Degree).

Alternate means: Driving under the influence. Pursuant to RCW 46.61.502, as amended in 1999, a person drives under the influence if that person drives while having 0.08 grams or more of alcohol per two hundred liters of breath or while having 0.08 percent or more by weight of alcohol in the person's blood or while the person is under the influence of or affected by intoxicating liquor or any drug or the combined influence of intoxicating liquor and any drug. Case law has interpreted the phrase “under the influence of or affected by” as meaning “any influence which lessens in any appreciable degree the ability of the accused to handle his automobile.” State v. Hurd, 5 Wn.2d 308, 315, 105 P.2d 59 (1940); State v. Hansen, 15 Wn.App. 95, 546 P.2d 1242 (1976).

Under the alternative means of driving under the influence, there is no need to also prove negligence. State v. Burch, 197 Wn.App. 382, 389 P.3d 685 (2016).

Initiative 502, Laws of 2013, Chapter 3, section 33 (effective December 6, 2012) changed the law concerning marijuana use effective December 6, 2012. The definition of THC concentration is now found in RCW 69.50.101(uu).

Because the initiative did not add the word marijuana in RCW 46.61.520, impairment alleging marijuana must continue to separately define marijuana as a drug. See Comment to WPIC 98.03 (Traffic Cases—Drug—Definition).

In State v. Rivas, 126 Wn.2d 443, 896 P.2d 57 (1995), the Supreme Court held that the only causal connection the State needs to prove in a vehicular homicide case “is the connection between the act of driving and the accident.” The Supreme Court held that as a result of the 1991 legislative amendments to RCW 46.61.520, vehicular homicide by intoxication does not require proof of a causal connection between the intoxication of the defendant and the death of the victim. State v. Rivas, 126 Wn.2d at 451–53; see also State v. Morgan, 123 Wn.App. 810, 815, 99 P.3d 411 (2004).

Vehicular homicide by intoxication is a strict liability crime. State v. Frahm, 193 Wn.2d 590, 444 P.3d 595 (2019). The Supreme Court in Rivas declined to find an implied mens rea requirement in RCW 46.61.520. State v. Rivas, 126 Wn.2d at 453. The State is not required to prove defendant's knowledge about the side effects of medication, where the allegation is driving under the influence of prescribed medication. State v. Dailey, 174 Wn.App. 810, 300 P.3d 834 (2013).

See the Comment to WPIC 92.02 (Driving or Being in Physical Control While Under the Influence—Elements) for further discussion relating to driving while under the influence.

Alternate Means: Operating a motor vehicle in a reckless manner. Driving in “a reckless manner” means driving in a rash or heedless manner, indifferent to the consequences. State v. Roggenkamp, 153 Wn.2d 614, 106 P.3d 196 (2005). For further discussion, see the Comment to WPIC 90.05 (Reckless Manner—Disregard for Safety of Others—Definition—Ordinary Negligence Distinguished).

To sustain a conviction for vehicular homicide based upon the reckless operation of a vehicle, the reckless manner in which the defendant operated the motor vehicle must have been a proximate cause of the death. See State v. Parker, 60 Wn.App. 719, 806 P.2d 1241 (1991); State v. Escobar, 30 Wn.App. 131, 633 P.2d 100 (1981); State v. Mearns, 7 Wn.App. 818, 502 P.2d 1228 (1972). See also State v. Imokawa, 194 Wn.2d 391, 450 P.3d 159 (2019). See additional discussion of superseding intervening cause in Comment to WPIC 90.08 (Vehicular Homicide and Assault—Conduct of Another).

Alternate means: Operating a motor vehicle with disregard for the safety of others. See the Comment to WPIC 90.05 (Reckless Manner—Disregard for Safety of Others—Definition—Ordinary Negligence Distinguished) for a discussion of the definition of disregard for the safety of others.

To sustain a conviction for vehicular homicide based upon operating a vehicle with disregard for the safety of others, the manner in which the defendant operated the motor vehicle must have been a proximate cause of the death. See State v. Miller, 60 Wn.App. 767, 807 P.2d 893 (1991); State v. McAllister, 60 Wn.App. 654, 806 P.2d 772 (1991).

The court in State v. Downey, 9 Wn.App.2d 852, 447 P.3d 588 (2019), held that the alternative means of reckless manner and the alternative means of disregard for the safety of others are alternative means of committing the same crime, not separate crimes. Disregard for the safety of others is not a lesser-included offense of reckless manner. See also State v. Ferguson, 76 Wn.App. 560, 886 P.2d 1164 (1995) (however the analysis was based on State v. Curran, 116 Wn.2d 174, 804 P.2d 558 (1991), and State v. Davis, 121 Wn.2d 1, 846 P.2d 527 (1993), which analysis was abrogated by State v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997)).

Contributory negligence. Contributory negligence of the victim is not a defense to vehicular homicide. However, evidence of contributory negligence may be material in determining whether the defendant's conduct was the proximate cause of the victim's death. State v. Judge, 100 Wn.2d 706, 675 P.2d 219 (1984); State v. Brobak, 47 Wn.App. 488, 736 P.2d 288 (1987). For further discussion, see the Comment to WPIC 90.08 (Vehicular Homicide and Assault—Conduct of Another).

Felony murder. In State v. Aamold, 60 Wn.App. 175, 803 P.2d 20 (1991), the court held that a defendant may be charged with both vehicular homicide and felony murder, based upon the underlying felony of eluding a police vehicle, without violating the defendant's equal protection rights. In In re Percer, 150 Wn.2d 41, 75 P.3d 488 (2003), the Washington Supreme Court held that convictions for vehicular homicide and felony murder arising out of the same incident did not constitute double jeopardy.

Enhancements and aggravators. Wrong way driving on the freeway is an aggravating circumstance. RCW 9.94A.535(3)(ee). See WPIC 300.37 (Aggravating Circumstance—Wrong Way Driving). Use with WPIC 300.02 (Aggravated Circumstance Procedure—Factors Alleged—Unitary Trial). See also, State v. Zigan, 166 Wn.App. 597, 270 P.3d 625 (2012) (egregious lack of remorse in vehicular homicide supported exceptional aggravating sentence). Minor child in impaired driver's vehicle is a felony enhancement for convictions under the impaired driving alternative means only. Use WPIC 190.15 (Special Verdict Form—Impaired Driving—Minor). If charging under more than one alternative means of committing vehicular homicide, use WPIC 90.03 (Special Verdict Form—Vehicular Homicide and Assault). See discussion in Comment to WPIC 90.03 (Special Verdict Form—Vehicular Homicide and Assault).

Reckless driving not a lesser included. Reckless driving is not a lesser included offense of vehicular homicide. State v. Curran, 116 Wn.2d 174, 183, 804 P.2d 558 (1991) (abrogated on other grounds State v. Berlin, 133 Wn.2d 541, 133 Wn.2d 541 (1997).