WPIC 90.03 Special Verdict Form—Vehicular Homicide and Assault

Use this instruction with WPIC 90.02 (Vehicular Homicide—Elements) or WPIC 91.02 (Vehicular Assault—Elements).

In an appropriate case, use this special verdict for vehicular homicide cases arising on or after July 1, 1994, when alternative theories have been alleged and for vehicular assault cases arising on or after July 22, 2001. See the Comment below.

For a discussion of the bracketed “not unanimous” language, see the Comment below. If the “not unanimous” language is used, then the instruction should be accompanied by WPIC 164.00 (Concluding Instruction—Special Verdict—Elements with Alternatives). Otherwise, the instruction should be accompanied by WPIC 160.00 (Concluding Instruction—Special Verdict—Penalty Enhancements).

This special verdict is necessary because of distinctions in the Sentencing Reform Act regarding the different seriousness levels assigned to the different means of committing vehicular homicide and vehicular assault. See RCW 9.94A.515; see also State v. May, 68 Wn.App. 491, 843 P.2d 1102 (1993) (the multiple seriousness levels assigned to vehicular homicide do not violate due process). Additionally, there are some enhancements and aggravators that may only apply to one alternative means. For instance, under RCW 46.61.520(2), if a defendant is convicted of vehicular homicide while under the influence, the defendant shall receive a two-year sentence enhancement for any “prior offense” as defined in RCW 46.61.5055. See also RCW 9.94A.533(7). Vehicular homicide and vehicular assault committed while under the influence may also have a minor child enhancement. RCW 9.94A.533(13). Use WPIC 190.15 (Special Verdict Form—Impaired Driving—Minor Child in Vehicle). Any of the means may be subject to the wrong-way driving on a highway aggravator. See RCW 9.94A.535(3)(ee). Use WPIC 300.37 (Aggravating Circumstance—Wrong Way Driving).

Unanimity. The jury interrogatory includes an inquiry as to unanimity. When alternatives are presented to a jury which carry different levels of punishment for sentencing purposes, “the court must determine the conviction rests squarely on [an alternative carrying a stiffer penalty] before it can impose the longer sentence. A lighter sentence is required whenever the jury unanimously finds the offense was committed by the [alternative with a lesser penalty] or is split between [the greater and lesser alternatives].” State v. Maurice, 79 Wn.App. 544, 550, 903 P.2d 514 (1995). See also State v. Tang, 77 Wn.App. 644, 893 P.2d 646 (1995) and State v. Brown, 145 Wn.App. 62, 184 P.3d 1284 (2008) (when jury is unanimous as to all three alternative means of committing vehicular homicide or vehicular assault, the sentence must be under the highest seriousness level).

The special verdict includes bracketed “not unanimous” language for each question. For criminal instructions generally, the “not unanimous” language is usually used for special verdicts for alternative-means offenses, see WPIC 190.09 (Special Verdict Form—Elements with Alternatives), but it is usually not used for special verdicts for penalty enhancements. See, e.g., WPIC 190.01 (Special Verdict Form—Deadly Weapon) and WPIC 190.02 (Special Verdict Form—Firearm). Vehicular homicide (or assault) includes both alternative elements and enhanced penalties. The judge and attorneys should discuss whether to use the “not unanimous” language in a given case of vehicular homicide or assault. This decision will also determine the wording needed for the concluding instruction (see the Note on Use above).