Vehicular Manslaughter: Sentencing, Laws and Penalties

Posted by Chris Morales on Mon, Dec 14, 2015 @ 09:40 AM

What is Vehicular Manslaughter?

Drivers who unintentionally cause accidents that result in the deaths of passengers, occupants of other cars, or pedestrians may find themselves charged with the crime of vehicular manslaughter (also known as vehicular homicide). Vehicular manslaughter charges are appropriate when the driver was under the influence of drugs or alcohol, or driving recklessly (or merely carelessly), or otherwise driving in an illegal manner—each state specifies the circumstances that will support charging this crime. 

The crime of vehicular manslaughter is a relative newcomer to the list of homicide offenses. Before its appearance, these drivers were charged with manslaughter (unintentionally killing someone as a result of criminal negligence or recklessness). But juries were often reluctant to attach the onus of “manslaughter” to a traffic accident. “Vehicular manslaughter” addressed this reluctance by typically providing for lesser penalties than manslaughter itself.

Driving that Results in Vehicular Manslaughter Charges

In order to know whether a vehicular manslaughter charge is appropriate when a highway death results from an accident, you’ll need to know exactly what kind of driving will trigger such a charge in your state. Here are the typical types of driving that state laws provide for.

Negligent driving

In many states, ordinary negligence, or carelessness, on the part of the driver will support a vehicular manslaughter charge. Ordinary negligence is inattention, or driving that lacks the care and prudence that an ordinarily careful person would exercise under the circumstances. For example, a driver who only briefly takes his eyes off of the road while reaching into his car’s console can still be charged with vehicular manslaughter if his inattention results in a fatal accident.

“Criminal negligence,” “culpable or gross negligence,” “reckless disregard of others’ safety”

In other states, the type of driving necessary to support a charge of vehicular manslaughter must be more egregious than simple negligence, explained above. Criminal, culpable, or gross negligence; and reckless disregard of others’ safety are common benchmarks. For example, someone who drove at high speed with a high blood alcohol level, failed to heed flashing red lights, traveled on the other side of the road, and failed to apply the brakes is someone whose driving was beyond careless or negligent.

Driving while intoxicated

Showing that a driver was intoxicated or under the influence of alcohol or drugs is a common way that prosecutors prove negligent or (depending on the state) reckless behavior. Intoxication can be proved by eyewitness testimony, self-incriminating statements, and chemical evidence, including blood, breath, or urine tests. In most states, prosecutors must show that the driving itself was careless—in other words, mere proof of legal intoxication is insufficient. Florida, however, is a notable exception—in that state, the prosecutor need only show that the defendant’s driving caused a death, and that the driver was intoxicated. (Fl. Stat. Section 860.01.)

Defendants who have a blood alcohol level of 0.08 or higher are presumed to be driving under the influence (some states set lower thresholds for certain classes of drivers, such as underage drivers and drivers of commercial vehicles). But even if the reading is lower, prosecutors can meet the applicable negligence standard by providing evidence of the driving itself, in conjunction with the ingestion of drugs or alcohol.

Drivers who are under the influence of prescribed drugs may also be charged with vehicular manslaughter when their driving causes a highway death. Consider the driver who takes medicine after being warned by the doctor of its side effects, when the medicine container itself contained clear and obvious warnings not to drive, and when the driver had prior experience with the drug’s effects—this driver has acted negligently at least, and possibly even recklessly.

Violating a safety or other statute

Vehicular manslaughter can also be charged when accidents happen after drivers violate a safety statute. For instance, many states require windshields to be clear. When a death results from the driver’s inability to see through an obscured windshield, a manslaughter charge may follow. Passing vehicles in violation of “no passing” signs, driving beyond the posted speed limit, and performing illegal U-turns are similar examples.

States also single out specific violations of law that are not necessarily safety violations, but involve important interests. When a death results, vehicular manslaughter charges might result. Under Iowa law, for example, a sober driver who causes a death while passing a stopped school bus commits a felony, while deaths caused by other types of reckless driving not involving DUI are punished as misdemeanors. Other states punish as felonies deaths caused by drivers attempting to elude police.

Driving while sleepy or falling asleep

Many traffic accidents happen when drivers have fallen asleep at the wheel, or are extremely drowsy. But when someone dies as a result, the driver won’t necessarily face vehicular manslaughter charges. The question is whether the driver acted negligently (or recklessly, depending on the state’s standard) when getting behind the wheel in such a condition. For instance, a manslaughter charge might be appropriate when someone chooses to stay up all night, works all day, and attempts to drive home after being awake for more than 36 hours. Voluntarily putting oneself in a position so that one cannot stay awake, and then driving, is negligent behavior and possibly even recklessness.

What About the Other Driver?

It’s very common for each driver involved in a car accident to share some of the responsibility—perhaps one car was going too fast, but the other car was, too. When blame and damages are sorted out in a civil context—who pays for what—courts often apportion the blame using the theory of “contributory negligence.” In other words, when you’re partially responsible, you collect less.

In a criminal context, however, contributory negligence is rarely applied in vehicular manslaughter cases. For example, suppose the victim driver had a blood alcohol level above the legal limit, but the defendant instigated a drag racing manoeuver that resulted in the victim’s death. Most judges would not allow the jury to hear evidence about the deceased’s blood alcohol level.

Penalties and Sentencing

Many states recognize different degrees of vehicular manslaughter. Statutes typically authorize more severe punishment for vehicular manslaughter convictions involving drunk or drugged drivers, as opposed to convictions based on non-DUI traffic offenses. For example, in Georgia, a driver who causes a death while intoxicated can be charged with first-degree vehicular homicide, a felony carrying up to fifteen years in prison. But a driver who causes a death while committing a moving traffic offense (such as failure to maintain lane position), is guilty of second-degree vehicular homicide, a misdemeanor carrying a maximum of a year in jail.

Penalties for vehicular manslaughter (both misdemeanors and felonies) differ greatly from state to state. In Alabama, for example, a person convicted of vehicular manslaughter based on DUI faces a maximum of five years in prison, while a person in Minnesota convicted of the same offense faces up to thirty years’ incarceration.

Possible Defenses to Vehicular Manslaughter

Common defense strategies in vehicular manslaughter cases include attempts to exclude incriminating evidence, such as test results showing that the defendant was driving with a blood-alcohol level above 0.08. A defense attorney may argue that such evidence should be excluded because it was obtained in violation of the defendant’s constitutional rights, or because law enforcement did not comply with procedures established for collecting the evidence.

A defendant may also argue that his intoxication was not the legal cause of the accident resulting in death (not an available defense in Florida, however; see above). Instead, a defendant may argue that an independent intervening event outside of the defendant’s control is the cause of the death instead of the defendant’s intoxication. For example, in Washington state, a defendant may be acquitted of vehicular homicide where a jury or judge finds that an intervening act caused the death, but the intervening event must be one that is not reasonably foreseeable.

A defendant may also present evidence that his reckless driving or apparent intoxication is due not to alcohol or drugs, but because of a pre-existing medical condition or medical emergency. While evidence of a medical condition can undermine a prosecutor’s claim that a defendant was under the influence of intoxicants, a person who chooses to drive despite a known medical condition may still be charged with vehicular homicide if that decision to drive is considered negligent or reckless.

Learn about the steps you need to take when Facing Criminal Charges.

See a Lawyer

If you are facing charges of vehicular manslaughter, it’s important to consult with a lawyer as soon as possible. An experienced criminal defense attorney can evaluate the strengths and weaknesses of the evidence against you, explain possible defenses and help you develop evidence to support them, and set out the options open to you. These options might range from obtaining a dismissal to pleading guilty as charged in exchange for a specific sentence, negotiating a reduction in charges in exchange for a plea, or going to trial. Only someone who understands how prosecutors and judges in your courthouse tend to handle cases like yours can give you realistic and helpful advice.

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Tags: penalties, Laws, under the influence, homicide, crime, vehicular manslaughter, intoxicated

Juvenile Law: Status Offenses

Posted by Chris Morales on Wed, Oct 14, 2015 @ 10:20 AM

Some acts are considered criminal only when minors commit them; these are called juvenile status offenses.

In juvenile cases, a "status offense" involves conduct that would not be a crime if it was committed by an adult -- in other words, the actions are considered to be a violation of the law only because of the youth's status as a minor (typically anyone under 18 years of age). Common examples of status offenses include underage drinking, skipping school, and violating a local curfew law. In an average year, approximately 20% of all juvenile arrests involve status offenses. Read on to learn what types of conduct constitute status offenses, how status offense cases are handled, and what penalties might apply to status offenses. (To learn more about other cases that are handled by the juvenile system, see Nolo's article Juvenile Court: An Overview.)

Types of Status Offenses

The kind of conduct that might constitute a status offense varies by state. The most common status offenses include:

  • truancy (skipping school)
  • violating a city or county curfew
  • underage possession and consumption of alcohol
  • underage possession and use of tobacco
  • running away, and
  • ungovernability (being beyond the control of parents or guardians).

How States Handle Status Offenses

Traditionally, status offenses were handled exclusively through the juvenile justice system. But in the 1960s and 1970s, many states began to view status offense violations as a warning signal that a child needed better supervision or some other type of assistance to avoid future run-ins with the law. This view is grounded in fact -- research has linked status offenses to later delinquency.

For the most part, state goals in dealing with status offenses became threefold:

  • to preserve families
  • to ensure public safety, and
  • to prevent young people from becoming delinquent or committing crimes in the future.

In this vein, the 1974 Federal Juvenile Delinquency Act emphasized "deinstitutionalizing" status offenses. This meant giving prosecutors broad discretion to divert status offense cases away from juvenile court and toward other government agencies that could better provide services to at-risk juveniles. Diverting a case before a delinquency petition was filed also allowed a young person to avoid the delinquent label -- some believed that label itself impeded a juvenile's chances for rehabilitation.

In 1997, only one in five status offense cases were formally processed by the courts, and even fewer status offense cases actually made it to juvenile court in the first place. That's because law enforcement officers are less likely to refer status offense cases to juvenile court, compared with delinquency cases. Of those status offense cases that do get referred, 94% involve liquor law violations.

Today, most states refer to status offenders as "children or juveniles in need of supervision, services, or care." A few states designate some status offenders as "dependent" or "neglected children," and give responsibility for these young people over to state child welfare programs.

States approach status offenses in a number of different ways. In some states, a child who commits a status offense may end up in juvenile court. In other jurisdictions, the state's child welfare agency is the first to deal with the problem. Some states have increased the use of residential placement for offenders, and others emphasize community-based programs. But, in all states, if informal efforts and programs fail to remedy the problem, the young person will end up in juvenile court.

Penalties for Status Offenses

For juveniles who do end up in juvenile court over a status offense, the kinds of penalties the court may impose vary from state to state. Common penalties for status offense violations include:

  • suspending the juvenile's driver's license
  • requiring the juvenile to pay a fine or restitution
  • placing the juvenile with someone other than a parent or guardian (such as a relative, foster home, or group home), or
  • ordering the juvenile to attend a counseling or education program.

If a juvenile violates a court order, most courts have the authority to order the juvenile's detention at a secure, locked facility. And, in some states, courts can require that the juvenile's parents attend counseling sessions or parenting classes.

Curfew Violations

Curfew violations are the subject of some controversy. Curfew laws are established locally, by cities or counties. Typically, they prohibit young people under a certain age (usually 18) from being in a public place during certain hours (between 11 p.m. and 6 a.m., for example). Most curfew ordinances contain exceptions for things like travel to and from work or school events. For the most part, local governing bodies enact curfews with the goal of preventing juvenile crime and keeping the peace.

How curfew violations are handled -- and what penalties might be imposed -- will vary depending on the city or locality. In some jurisdictions, police bring curfew violators to a center where they must wait to be picked up by a parent or guardian. Often, the police officer is given discretion to issue a warning or simply take the minor home. Sometimes the curfew violator faces fines, mandatory community service, enrollment in after-school programs, or the loss of driver's license privileges. In extreme cases, a curfew violator might end up in juvenile hall. In some jurisdictions, parents who knowingly allow curfew violations could also be subject to fines.

Challenges have been mounted to some curfew laws on the basis that they violate juveniles' First Amendment rights to free speech and association. One recent example involved a curfew law imposed by the city of Rochester, New York. The New York Court of Appeals struck down that law as unconstitutional, but a number of other curfew ordinances have been upheld after being challenged in court.

Truancy

A minor is considered truant if she or he skips school without a valid excuse and without the knowledge of a parent or guardian. States and school districts have different standards as to how many absences are required before a student will be deemed truant. In some states, the number is three per year. In others, it's as many as 18 absences.

Schools are usually the first in line to enforce truancy laws and even have the authority to refer truancy cases to juvenile court when necessary. Police officers have the legal power to detain truant children who are outside of school grounds. Many states also hold parents accountable for their children's truancy, imposing fines or even jail time on parents who fail to ensure sure that their children are in school.

Truancy accounts for the majority of status offense cases in the juvenile system, and studies have show a strong link between truancy and future delinquency, not to mention difficulty in school. For this reason, many states, counties, and schools have begun to crack down on truancy.

For more information about juvenile court, the rights of minors in juvenile proceedings, and how to help if you are the parent of a minor in trouble with the law, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara Berman (Nolo). For help with a juvenile proceeding, you can turn to Nolo's trusted Lawyer Directory to find a juvenile justice attorney near you. 

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Tags: juvenile, offenses, juvenile court, penalties, criminal acts

Sentencing Partners - September 2015 (Part I)

Posted by Chris Morales on Sun, Sep 27, 2015 @ 10:20 PM

We would like to thank our friends Joaquin & Duncan, L.L.C. for sharing this information with us.

Published By Joaquin & Duncan, L.L.C.;
A Law Firm of Federal Sentencing Attorneys

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Tags: sentencing partners, defendant, trial, felony, court, offense, cases, penalties, federal criminal cases, offender, drug-trafficking

Criminal Mischief

Posted by Chris Morales on Mon, Jul 13, 2015 @ 09:00 AM

Criminal mischief has likely been around for as long as people have owned personal property. Any time a person damages someone else's property without the owner's permission, that's criminal mischief. Criminal mischief is also known as malicious mischief, vandalism, damage to property, or by other names depending on the state.

Damage But Not Possession

 The crime of criminal mischief occurs whenever someone damages someone else's property. The amount of damage can be minor or significant, but it's the damaging of the property that is the key issue in the crime. Criminal mischief does not involve taking another's property, only breaking, defacing, or otherwise damaging it without the owner's permission.

Intent to Act

You can't accidentally commit criminal mischief. The law requires that you damage the property intentionally and not simply accidentally. For example, if you're playing baseball and accidentally hit the ball through your neighbor's window, this is not criminal mischief. On the other hand, if you decide to start hitting baseballs at your neighbor's home and one of them happens to go through the window causing damage, that's a crime. It doesn't matter if you specifically intended to break the window or intended to cause any kind of physical damage. All that matters is that you intended to take actions you knew (or should have known) might reasonably result in property damage.

Types of Damage

Criminal mischief encompasses a range of different activities, from painting graffiti on a wall, to tampering with a fire hose or emergency exit, or removing a survey or boundary marker. In some states, criminal mischief also encompasses actions such as setting off a smoke bomb or other device to cause public alarm, or even interfering with someone's use of the computer by introducing a virus or otherwise damaging computer components.

Recklessness

In some situations you can commit criminal mischief you act recklessly. Reckless acts are not accidental acts; they're committed with a conscious disregard for the likely consequences. For example, using explosives, fire, or other potentially dangerous items or methods without regard to the probable outcome, and damaging property as a result, would substantiate a charge of criminal mischief.

Degrees of Damage

Many states differentiate between different degrees of criminal mischief based on either the amount of damage done or whether specific property or specific elements are involved. For example, the lowest degree of criminal mischief usually involves only slight amounts of damage, such as up to a few hundred dollars' worth. More significant damage raises the crime to a higher degree. The more significant the degree, the harsher the potential penalty. Also, higher degrees often apply when the person has committed prior acts of mischief before, if the damage involved public utilities or public services, or if the crime put someone at risk of physical harm.

Penalties

Criminal mischief crimes are charged as either misdemeanor or felony offenses. Misdemeanor crimes are less serious than felony crimes, with felonies having potential sentences of a year or more in prison, while misdemeanors are punished with potential penalties of up to a year in jail.

  • Jail or prison. If you commit criminal mischief, you may be sentenced to a period of incarceration in either a local jail or state prison. If the mischief results in a relatively small amount of damage, such as a few hundred dollars or less, the potential jail sentence is usually very small, typically up to 30 or 60 days. Felony sentences, especially in cases where someone else was put at risk, can bring five years or more in prison.
  • Fines. Fines are a very common penalty for criminal mischief. First-time offenders are often sentenced to pay a fine and do not have to serve any jail or prison time. Misdemeanor fines often range between a few hundred dollars up to about $1,000. Felony fines, on the other hand, are typically much more significant. Fine of $5,000, $10,000, or even higher are possible, especially in cases involving significant property damage or where people were placed at risk.
  • Probation. Probation is a possible sentence in criminal mischief cases in addition to, or as an alternative to, fines and incarceration. When a court orders you to serve probation, you must meet specific terms. These terms often include, for example, not committing more crimes, meeting regularly with a probation officer, not associating with known criminals, paying all fines and restitution, and finding or maintaining employment.
  • Restitution. When a crime involves damage to property, courts usually make restitution a part of the sentence. Restitution pays the property owner for the damage caused. While a court may order you to pay fines, those fines get paid to the state. Restitution, on the other hand, is paid to the property owner.

Talk to a Lawyer

Criminal mischief charges can seem minor, especially if they don't involve a significant amount of damage or if you have never been charged with a crime before. However, even a misdemeanor conviction can seriously impact the rest of your life. You always need to speak with an experienced criminal defense attorney in your area whenever you are charged with, or investigated for, any criminal mischief crime. Only a local attorney who knows your state's laws and who has experience working with area judges and prosecutors can give you legal advice about your case. You need to speak to a criminal lawyer as soon as possible if you are charged with criminal mischief.

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Tags: jail, prison, Fines, criminal mischief, damage, penalties, restitution, crime, probation

Incest Laws and Criminal Charges

Posted by Chris Morales on Mon, May 18, 2015 @ 08:50 AM

Learn what constitutes incest and the penalties associated with it.

Incest, which is sexual relations between (non-spouse) family members, is outlawed in most countries, including the United States. Incest laws aim to promote security and unity with the family, and to prevent the genetic problems that often occur in babies whose parents are related.

In the U.S., incest is regulated by state, not federal law, and every state has one or more laws banning this problematic behavior. And while states sometimes vary in defining the outer boundaries of who is considered “family” and the exact behaviors that are off-limits, the underlying goals or policy considerations remain consistent among states.

Recognizing the disruptive nature of incest on healthy family relationships and power dynamics, all state incest laws outlaw sex between close blood relations, and many states also include step-, foster, and adoptive relations, too. And in some states, even unconsummated marriage between close relations is considered incest.

What is “Family?”

For the purposes of incest laws, “family” can mean several things: blood relations, family by adoption or marriage (including step-family members), foster families, and sometimes even “family-like” situations (such as a parent and child who live with the parent’s boy- or girlfriend).

All states include close blood relations— parents, children, aunts, uncles, and grandparents—in the definition of “family.” Closely-related cousins, such as the children of a parent’s sibling, are also included in most states, although more distant cousins are sometimes exempted from incest laws.

In general, the more distant the relation, the less likely that it will be considered as "family" for purposes of incest law. However, other factors (for example, distant cousins being raised in the same household like siblings) can make an otherwise non-problematic relationship incestuous.

Prosecution and Defenses

Often, a situation involving incest also implicates other criminal laws. For example, child abuse and rape (and statutory rape) may be charged as well. Local prosecutors have discretion about whether to bring charges under the state incest law or other applicable laws. Similarly, if a relationship is too attenuated to qualify as an incest crime, the prosecutor will usually have other laws (such as those covering molestation, lewd acts, or rape) under which to prosecute the defendant.

Consent not a defense

A defendant may be convicted of engaging in incest if he knowingly engaged in a sexual encounter with a family member (if no encounter actually took place, the prosecutor may charge the defendant with attempted incest). Because of this, the consent of the other party is not a defense. Of course, as noted, if the victim did not consent and was forced, or was underage, a defendant may face charges for other sex offenses—such as rape and statutory rape—instead of (or in addition to) the incest charge.

For more on rape, see Statutory Rape. And to learn more about statutory rape, see Rape Laws, Defenses, and Penalties.

Who is charged?

Although the ages of the parties are not relevant in proving that incest took place (and are not a defense to such charges), the age of the parties may be relevant as far as who is prosecuted for the crime. For example, if an adult parent has consensual sex with a minor son or daughter, the parent may be prosecuted, while the child will be considered a victim

But where two siblings of similar age are sexually involved with each other, they might both be prosecuted (although many states handle crimes committed by minors through juvenile or family court). For more on crimes committed by minors, see The Juvenile Justice System.

Old cases and the statute of limitations

All states set time periods in which a crime may be prosecuted, such as five or ten years after the incident. Such laws are intended to ensure that cases are handled relatively quickly, and recognize the danger in prosecuting old cases where the facts may be difficult to discern. In some states, if a long time has passed since the time of an incestuous encounter or relationship and a prosecution, the defendant may claim that the statute of limitations has run.

For more information on state statutes of limitation, with state-by-state information, see Criminal Statutes of Limitations.

Penalties

Penalties for an incest conviction vary according to state law, but may include separation of family members (if a child is involved, the child may be placed in foster or other care), or a jail or prison term of several months to many years.

For information on felony charges and sentences on a state-by-state basis, see Classification of Crimes: Felonies & Misdemeanors.

Help for Incest Survivors

If you or someone you know is a victim of incest or another sex crime, there is free and confidential help available to you. Contact the Rape, Abuse & Incest National Network (RAINN) for online help and local resources.

Talk to a Lawyer

If you are facing an incest charge, consider consulting with an experienced criminal defense attorney who regularly practices in your area. A lawyer can evaluate the strength of the prosecution’s case against you, help develop any defenses that might apply to your case, and will know how local prosecutors and judges typically handle cases like yours.

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Tags: Criminal Charges, incest laws, penalties, federal law, defense, prosecution

Second Offense DUI in California

Posted by Chris Morales on Fri, Apr 03, 2015 @ 07:20 AM
by  Attorney
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Tags: California, felony, DUI, Jail Time, misdemeanor, penalties, suspended license, Second Offense

Resisting Arrest When Police Use Excessive Force

Posted by Chris Morales on Wed, Sep 17, 2014 @ 02:20 PM

The Morales Law Firm would like to share this article: Resisting Arrest When Police Use Excessive Force published by NOLO. For more information visit www.NOLO.com.

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Tags: arrest, battery, defendants, arrestee, victim, assault, penalties, defend

Have you convicted a drug offense?

Posted by Chris Morales on Mon, Feb 25, 2013 @ 04:05 PM

Have you convicted a drug offense? If so are you aware of the possible drug charges and fines you are about to encounter.

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Tags: heroin, drugs, cocaine, marijuana possession, penalties, crime