WPIC 91.02 Vehicular Assault—Elements

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).

Along with this instruction, use WPIC 2.03.01 (Substantial Bodily Harm—Definition). Also use, as applicable, WPIC 90.05 (Reckless Manner—Disregard For Safety of Others—Definition—Ordinary Negligence Distinguished), WPIC 90.06 (Vehicular Homicide and Assault—Under the Influence or Affected By—Definition), WPIC 92.12 (Driving or Being in Physical Control While Under the Influence—Alcohol or THC Concentration—Definition), and WPIC 98.03 (Traffic Cases—Drug—Definition).

Use WPIC 90.03 (Special Verdict Form—Vehicular Homicide and Assault) and WPIC 160.00 (Concluding Instruction—Special Verdict—Penalty Enhancements) with this instruction.

For a discussion of the phrase “this act” in the jurisdictional element, see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

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 46.61.522.

Vehicular assault may be committed by the alternative means of driving while under the influence of alcohol or drugs, or by driving in a reckless manner, or by driving with a disregard for the safety of others. Vehicular homicide cases interpreting these means are also applicable to vehicular assault. See State v. Hill, 48 Wn.App. 344, 739 P.2d 707 (1987). See the Comment to WPIC 90.02 (Vehicular Homicide—Elements) for an extensive discussion of each of the comparable means of committing vehicular homicide. For a discussion on the impact of Laws of 2013, Chapter 3, section 33 (Initiative 502 (effective December 6, 2012)), see the Comment to WPIC 90.02 (Vehicular Homicide—Elements). Since the initiative did not add the word marijuana in RCW 46.61.522, impairment alleging marijuana must continue to separately define marijuana as a drug. See the Comment to WPIC 98.03 (Traffic Cases—Drug—Definition).

Vehicular assaults cases occurring after July 22, 2001, like vehicular homicides, are strict liability crimes. State v. Frahm, 193 Wn.2d 590, 444 P.3d 595 (2019). The only causal connection the State is required to prove is the connection between the defendant's act of driving and the accident or collision. State v. Rivas, 126 Wn.2d 443, 451–52, 896 P.2d 57 (1995). The “conduct of the defendant must be both (1) the actual cause, and (2) the ‘legal’ or ‘proximate’ cause.” State v. Rivas, 126 Wn.2d at 453; State v. Meekins, 125 Wn.App. 390, 397, 105 P.3d 420 (2005). See also State v. Dailey, 174 Wn.App. 810, 300 P.3d 834 (2013) (only the elements in the statute are required to be proved by the State). For a more extensive discussion of Rivas, refer to the Comment to WPIC 90.02 (Vehicular Homicide—Elements).

The vehicular assault statute does not require that the defendant's actions be the sole proximate cause of the injury notwithstanding language in the statute that the defendant's conduct be “the proximate cause” of the victim's injury. State v. Neher, 112 Wn.2d 347, 771 P.2d 330 (1989); see also State v. Parker, 60 Wn.App. 719, 806 P.2d 1241 (1991) (a defendant can be guilty of vehicular assault even if the defendant's car was not physically involved in the accident). For a similar discussion, see the Comment to WPIC 90.02 (Vehicular Homicide—Elements).

Negligent driving in the first degree is not a lesser included offense of vehicular assault. State v. Bosio, 107 Wn.App. 462, 27 P.3d 636 (2001).

A verdict can be reached even though the jurors do not unanimously agree upon the means by which the offense was committed. See Comment to WPIC 90.02 (Vehicular Homicide—Elements).