WPIC 90.07 Vehicular Homicide and Assault—Proximate Cause—Definition

This instruction should be given in all vehicular homicide and vehicular assault cases, because “proximate cause” is an element of both offenses.

Use bracketed material as applicable. For directions on using bracketed phrases, see WPIC 4.20 (Introduction).

The bracketed third paragraph should always be used when the evidence supports more than one proximate causes. It should always be included when using WPIC 90.08 (Conduct of Another).

This instruction is adapted from WPIC 25.02 (Homicide—Proximate Cause—Definition) and is drafted specifically for use in vehicular assault and vehicular homicide cases only. This instruction replaces former WPIC 91.05 (Vehicular Assault—Proximate Cause—Definition) in 11 Washington Practice, Washington Pattern Jury Instructions: Criminal (2d ed).

For a general discussion of proximate cause, see the Comment to WPIC 25.02 (Homicide—Proximate Cause—Definition). For a discussion of the proximate cause requirements under the vehicular homicide and vehicular assault statutes, see the Comment to WPIC 90.02 (Vehicular Homicide—Elements).

There may be more than one proximate cause of a death or injury; however, in this area, a concurring or contributory cause does not shield a defendant from a vehicular homicide conviction. State v. Frahm, 193 Wn.2d 590, 444 P.3d 595 (2019); State v. Roggenkamp, 153 Wn.2d 614, 631, 106 P.3d 196 (2005). To constitute a defense, there must be an intervening and superseding cause without which the defendant's negligence would not have caused the accident. State v. Roggenkamp, 115 Wn.App. 927, 945, 64 P.3d 92 (2003), affirmed, 153 Wn.2d 614, 631, 106 P.3d 196 (2005) (expressly approving the Court of Appeals' analysis); State v. Souther, 100 Wn.App. 701, 708–09, 998 P.2d 350 (2000). In State v. Neher, 112 Wn.2d 347, 771 P.2d 330 (1989), the court held that a defendant's actions need not be the sole proximate cause of a victim's injury under RCW 46.61.522, the vehicular homicide statute. Also see State v. Parker, 60 Wn.App. 719, 806 P.2d 1241 (1991). See further discussion in the Comment to WPIC 90.08.

The jury must be instructed in a way that makes the state's burden of proof clear. State v. Imokawa, 194 Wn.2d 391, 450 P.3d 159 (2019). “[U]nder the [vehicular homicide and vehicular assault] statutes, the absence of a superseding intervening cause is not an element of vehicular homicide or vehicular assault.” State v. Imokawa, 194 Wn.2d at 401. The pattern jury instructions given in Imokawa were constitutionally adequate and did not violate due process. State v. Imokawa, 194 Wn.2d at 402–03. The jury in Imokawa received WPIC 4.01 (Burden of Proof—Presumption of Innocence—Reasonable Doubt), WPIC 90.02 (Vehicular Homicide—Elements), WPIC 91.02 (Vehicular Assault—Elements), WPIC 90.07 (Vehicular Homicide and Assault—Proximate Cause—Definition), and WPIC 90.08 (Vehicular Homicide and Assault—Conduct of Another).

See further discussion of superseding intervening cause in the Comment to WPIC 90.08. (Vehicular Homicide and Assault—Conduct of Another).