Opinion
ID No. 0701000116.
Submitted: June 8, 2007.
Decided: June 26, 2007.
Stephen R. Welch, Jr., Esq., Department of Justice, Dover, Delaware, for the State.
Gregory ". Morris, Esq., Liguori, Morris and Yiengst, Dover, Delaware, for the Defendant.
Opinion and Order Upon Consideration of Defendant's Motion to Declare Statute Unconstitutional GRANTED
The Defendant, Scott L. "dkins, has filed a motion to declare 21 Del. C. § 4176A, Operation of a Vehicle Causing Death, unconstitutional or, in the alternative, for an Order requiring the State to prove he acted "intentionally, knowingly or recklessly." For the following reasons, the Motion is GRANTED.
FACTS
On February 5, 2007, the Grand Jury indicted the Defendant on two counts related to a traffic accident alleged to have occurred on or about December 22, 2006, on Route 13 Northbound, about a mile south of Cheswold in Kent County, Delaware. These counts include: Operation of a Vehicle Causing Death (Count 1) and Lane Change When Prohibited (Count 2).According to the "ffidavit of Probable Cause, at approximately 5:05 p.m. a motor vehicle collision occurred on the shoulder of Route 13 Northbound, approximately 300 feet south of Simms Woods Road and a quarter mile south of the Town of Cheswold. The collision was between a motor vehicle operated by the Defendant and a pedestrian, Tanisha Cruz ("the victim"), who was walking on the shoulder with the flow of traffic. "t the time of the accident it was dark and raining. The victim's vehicle, a 2002 Mercury Sable, had apparently run out of gas some 400 feet south of Simms Woods Road, bringing about her leaving her vehicle to walk for assistance. The Defendant was operating his work vehicle, a 2005 Chevy Express Van, intending to turn onto Simms Woods Road by way of the shoulder to go home for the evening. The Defendant admitted to entering the shoulder before the marked turn lane began. The Defendant also admitted that he struck the victim when both were in the shoulder lane. The victim was thrown an undetermined distance onto a grassy area short of the right turn lane. She was transported to Kent General Hospital, where she died on Saturday, December 23, 2006, from massive internal injuries sustained in the accident.
The Defendant states that it was raining heavily and was also foggy. For purposes of this Motion, that need not be taken into consideration.
"ccording to the "ffidavit of Probable Cause, "Defendant was interviewed at the scene and he admitted to driving onto the shoulder prior to reaching the right turn lane striking the Victim approximately three quarters into the lane."
From a consideration of the subjective perspective of the victim, it is impossible not to have feelings of great sympathy, even understanding, since she was a woman confronted by a desperate situation.
While driving on Route 13 with her children, on a dark, rainy night, she had, as indicated, run out of gas. Her attempted solution was to take to the highway on foot, temporarily abandoning the vehicle containing her children." terrible dilemma had come upon her. She undoubtedly responded as well as she thought she could. No one faults her motivation.
Yet, from an objective perspective, she created, by her various choices B however well intentioned B a very dangerous condition. This circumstance of peril began when she ran out of gas. That is avoidable by one's having a vehicle equipped with a functioning gas gage, and by maintaining awareness of it. For whatever reasons, she failed in that regard. Then, on this dark December night, made worse by the rain from any visibility standpoint, she elected to walk upon one of Delaware's few major highways, wearing dark clothing and not bearing any light or reflective device. "s we know from the theater, for centuries actors have rendered themselves invisible to the audience B even on a stage heavily footlighted and in front of people actively looking for actors B merely by donning dark clothing and positioning themselves in front of a black curtain. So self-evident is that concept that the Delaware traffic rules have, by 21 Del. C. § 4148, described a violation of the rules of the road as walking on any roadway after sunset in such a condition. The particular reason for that statute is to prevent the very situation which this victim created. Hence, as desperate as she may have felt, she deliberately acted in a manner which violated the law and created an extremely dangerous state.
Additionally, though, and far less understandably, she elected to walkwith potential traffic. The law, (21 Del. C. § 4146 (b)) of course, requires every pedestrian walking B at any time of day B on a roadway to do so facing traffic. Had she not directly disregarded that requirement, she (being aware of her virtual invisibility) could have seen the Defendant's vehicle approaching, and moved out of a position of peril.
Hence, no matter how pitiable her plight, the victim intentionally placed herself into an extremely dangerous posture: one which she easily, and by any one of several measures, could have avoided; indeed, one which probably only good luck could have prevented.
This is not to suggest that any concept of comparative responsibility enters into this analysis. It does not. It does, however, reflect appropriately on the condition of circumstance extant, and whether it reasonably could have been anticipated by Defendant.
Thus, into that condition drove Defendant. Coming home from work, driving at an appropriate speed, with the lighting equipment on his vehicle operating, he approached the turn from Route 13 toward his residence. Traveling north, he came to the area near Simms Woods Road, the eastbound turn from the highway. "t this point, Route 13's northbound lane is sided to the east by an improved shoulder, delineated by a solid white line between it and the northbound travel lane, which then becomes a dotted line designating a decelerating lane, specifically directing right turning traffic to enter in order to facilitate the free flow of northbound traffic. In this dark and rainy situation, the Defendant changed from the speed lane to the shoulder lane prior to the designated deceleration lane.
Were vehicles behind Defendant, travel conditions for those drivers, in fact, would have been improved by Defendant's actions. Were a pedestrian walking on the shoulder, of course, the lane change would have been dangerous for the pedestrian. We know, in retrospect, that the latter existed. Which, though, as of the immediate time leading to this ultimate tragedy, was anticipatable? The question is significant in the context of a legal analysis of allegedly criminal conduct.
The reason that the question is significant is that, in this case, the predicate violation to the vehicle operation (21 Del. C. § 4122(1)) is not merely moving from one lane to another, but doing so without ascertaining that the movement can be made with safety.
PARTIES' CONTENTIONS
The Defendant raises two alternative arguments for relief from what be posits are the harsh results of the statute, 21 Del. C. § 4176A. First, the Defendant argues that the statute should be held unconstitutionally vague and violative of due process because: (1) it fails to specify or define the state of mind sufficient for commission of the crime; (2) it appears to impose strict liability, but does not clearly evince a legislative intent to impose strict liability; and (3) although the statute is classified as an "unclassified misdemeanor," it imposes severe felony-like sentences.
In the alternative, the Defendant urges the Court to interpret the statute to require the State to prove at trial that the Defendant acted either intentionally, knowingly or recklessly with regard to the underlying traffic offense which resulted in the death.
The State responds by arguing that 21 Del. C. § 4176A is akin to a sentence-enhancement statute and, therefore, must be viewed as importing any necessary mens rea from the underlying offense. The State maintains that the statute merely adds the element of "caus[ing] death" to the underlying offense, thereby enhancing the sentence; and that the criminal mindset of the underlying offense is applied to the additional element. The State asserts that the mens rea of the underlying offense is ordinary negligence, which, the State claims is sufficient to establish criminal liability. Thus, the argument goes, if the Court were to impose a mens rea higher than negligence, it would eliminate the need for § 4176A since the Criminal Code already criminalizes a death committed with all of the other mens rea: intentionally, knowingly, recklessly and criminally negligent.
DISCUSSION
As Judge Graves stated, in his opinion of June 11, 2007, on cases similar but not identical to the instant case, statutes are entitled to a presumption of constitutionality and all doubts must be resolved in favor of the challenged legislative act. "[W]here a possible infringement of constitutional guarantee exists, the interpreting court should strive to construe the legislative intent so as to avoid unnecessary constitutional infirmities." "s he notes, as well, again citing Baker: "A statute is void for vagueness if it fails to give a person of ordinary intelligence fair notice that his contemplated behavior is forbidden by the statute, or if it encourages arbitrary or erratic enforcement."
State v. Cordrey, Del. Super., I.D. No. 0608015070, Graves, R.J. (June 11, 2007) (Letter Op.)
State v. Baker, 720 ".2d. 1139, 1144 (Del. 1998).
Richardson v. Wile, 535 ".2d. 1346, 1350 (Del. 1988).
Id. "t 1147-48.
A short history of the law surrounding deaths occurring on the highways of Delaware is instructive to the consideration of this Motion. "pparently, in the 1950s, and earlier, Delaware lacked a criminal code provision specifically responding to some deaths occurring on our highways. Instead, those accused of causing a death on the highways of this State were routinely charged with "common law manslaughter." Delaware divided "common law manslaughter" into three classes: (1) where there was an intent to take life, and the killing would have been murder but for mitigating circumstances; (2) where death resulted from unintentionally doing an unlawful act; and (3) where death results from the negligent doing or omission of an act which, though not in itself wrongful, was attended by circumstances which endangered life. Where this crime was premised on the defendant's commission of an unlawful act, not deemed to be a felony, such a crime was commonly referred to as an unlawful act of manslaughter, or "misdemeanor manslaughter". In State v. Hupf, the Delaware Supreme Court was presented with the question of whether a homicide resulting proximately from violation of a penal law, not amounting to a felony, in this case a traffic violation, constituted involuntary manslaughter without proof of rash or reckless conduct amounting to gross negligence. The Hupf Court responded that:
"it does not seem too much to ask that the automobile driver be held to strict accountability for violation of regulations prescribed by the law-making power in the interest of public order and safety, if that violation is the cause of the death of another." careful application by the courts of the doctrine of proximate cause, and the common sense of the jury, should prevent any undue hardship in the enforcement of the common-law rule."
"s is explained in detail below, at the time, the State's criminal code, or at least what existed, was a mess.
See State v. Hupf, 101 ".2d 355 (Del. 1953). Common law manslaughter was a combination of the Delaware Statutory provisions regarding manslaughter, in effect during those years, Revised Code of Delaware Chpt. 149, 5161 (1935) and 11 Del. C § 575 (1953), and consisted of the elements of manslaughter laid down by the common law.
See Id. at 356-357.
See LaFave Scott, Substantive Criminal Law § 7.13(e) (1986).
See Charles E. Torcia, Wharton's Criminal Law, § 168 15th ed. 1994); "merican Law Institute, Model Penal Code and Commentaries, § 210.3, comment 7 (1980).
Hupf, 101 ".2d at 357.
Id. at 360.
Such interpretation was accordingly extant in Delaware prior 1973. During that period, "[t]he criminal law of Delaware consisted. . . of a large number of unconnected criminal statutes. The offenses were not codified, and the sections defining them were phrased in widely different styles of language. Penalties were inconsistent, language archaic, and many offenses were left to be defined by the common law without any statutory assistance. General principles of criminal liability, such as definitions of the requisite states of mind for criminal guilt and defenses to criminal prosecution, were also left to common law development."
Delaware Criminal Code with Commentary, Introduction, p. III (1973).
Eventually, Delaware recognized that this situation could not continue. Therefore, the Governor's Committee for Revision of the Criminal Law embarked on a full scale recodification and revision of Delaware's criminal law. On July 6, 1972, Delaware saw the culmination of over 20 years of work come to fruition when Governor Peterson signed the Committee's proposal, the Delaware Criminal Code, into law. The Committee recognized that the change would be difficult, but was optimistic of the new direction the Code would set for the State. The Code "provide[d] an opportunity for improved law enforcement and for improved public understanding of the provisions of law. Most important, it place[d] Delaware in that growing group of jurisdictions with a modern criminal code, hopefully adequate to meet the demands of the present era."
Id. at p. IV. See also, 58 Del. Laws, Ch. 497 (1971).
Id. at p. V.
Two sections enacted in 1972, as part of the packet of reforms known as the Delaware Criminal Code, having a direct impact on deaths occurring on Delaware highways, were § 631, Criminally Negligent Homicide, and § 632, Manslaughter. "ccording to the Delaware Criminal Code with Commentary, prior to the enactment of § 631, "there was no penalty, either at common law or in Delaware statutory law, for negligently caused homicides." However, manslaughter included those acts of gross negligence. Section 631 provided that "[a] person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person." Criminal negligence is "a failure to perceive a risk that death will occurBa risk so great that failure to perceive it constitutes a gross deviation from the reasonable man's standard of care under the circumstances." Such acts would have been treated as involuntary manslaughter under the former Delaware law. The Commentators believed that many motor vehicle cases would be covered by § 631.
Delaware Criminal Code with Commentary, § 631, p. 177.
Id.
Id.
Id. (The "term means negligence much more serious than that sufficient for civil liability.")
Id. at 178.
Id.
Section 632 provided that a person was guilty of manslaughter when: (1) he recklessly causes the death of another person; (2) withintent to cause serious physical injury to another person, he causes the death of such person, employing means which would, to a reasonable man in the defendant's situation, knowing the facts known to him, seem likely to cause death; (3) he intentionally causes the death of another person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance; (4) he commits upon a female an abortion which causes death, unless such abortion is a therapeutic abortion and the death is not result of reckless conduct; or (5) he intentionally causes another person to commit suicide. This section, along with § 631, were intended to occupy the field. Nothing in § 632 was "intended to resurrect the rule in State v. Hupf to the effect that a killing as the result of any unlawful act is manslaughter." Rather, Section 632 was "aimed solely at conduct which is substantially likely to cause death and which the actor, in the exercise of reasonable care, could have known would cause death." Section 632 was founded on the principle that "[i]t is inconsistent with proper theories of criminal law to impose manslaughter penalties for purely chance results of an unlawful act which, by definition, the actor did not expect would result in death." With the enactment of § 631 and § 632 Delaware thereby laid to rest the misdemeanor manslaughter rule as it applied to deaths occurring on the highways of this State.
Id., § 632, p. 179.
Id. at 186.
Id.
Id.
In 1981, the General "ssembly enacted 11 Del. C. § 630, Vehicular Homicide in the Second Degree. This statute made clear that when "in the course of driving or operating a motor vehicle, the person's criminally negligent driving or operation of said vehicle causes the death of another person," that person was guilty of Vehicular Homicide in the Second Degree. No commentary is attached to this statute. However, the statute makes clear what the drafters of the 1972 Delaware Criminal Code suggested: that the mens rea required for finding a driver culpable for the death of another on the highways of our State was criminal negligence.
In 2003, the General "ssembly enacted 21 Del. C. § 4176A, Operation of a Vehicle Causing Death. "gain as Judge Graves points out, this statute was enacted (at the conclusion of a legislative session) to honor a Mr. Pritchett. "s worthy a basis of honor as may well have existed, the precipitate passage of criminal legislation seems ill-suited to the occasion. Notwithstanding, the language of this statute is not unique to Delaware, though such statutes, having been passed, have been amended in several jurisdictions. In any event, 21 Del. C. § 4176A provided that "[a] person is guilty of operation of a vehicle causing death when, in the course of driving or operating a motor vehicle or OHV in violation of any provision of this chapter other than § 4177 [the DUI statute], the person's driving or operation of the vehicle of OHV causes the death of another person." (Emphasis added). Though the statute is designated expressly in its title and its text an "unclassified misdemeanor," it carries a penalty for a first offense of a fine not more than $1,150, and imprisonment for not more than 30 months. The Superior Court was vested with original and exclusive jurisdiction of violations of this statute by persons 18 years of age or older.
States that have amended their motor vehicle homicide statutes to require more than ordinary negligence include: Kansas (amended vehicular homicide language found at Kan. Stat. "nn. § 21-4305(1); said language interpreted by State v. Randol, § 97 P.2d 672 (Kan. 1979), to require a showing of more than simple negligence), Kentucky (current language for vehicular homicide found at Ky. Rev. Stat. "nn § 07.040), and Oregon (criminally negligent homicide language found at Or. Rev. Stat § 163.145, specific references to vehicle homicide have been completely eliminated).
21 Del. C. § 4176A(b), (c). Ordinarily, such a punishment would fall somewhere between a Class F Felony (up to 3 years at Level V) and a Class G felony (up to 2 years at Level V). See 11 Del. C. § 4205(b). Therefore, § 4176A offers almost the same possible punishment as Vehicular Homicide Second Degree, 11 Del. C. § 630, which is a Title 11, Criminal Code Class F Felony, and is based upon recklessness.
The Defendant's first argument, that the statute is void for vagueness, presents very interesting considerations. "[T]he void for vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." "dmittedly, it is the rare criminal statute that is voided for vagueness. Yet, here, we must look to see whether a person of ordinary intelligence has fair notice, by the existing statutory language, that he will be held liable under the statute when his action results in any violation of the motor vehicle code, and is a proximate cause of the death of another.
Grace v. State, 658 ".2d 1011, 1015 (Del. 1995) (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)) (internal quotations omitted).
Is this, in effect, a strict liability criminal statute? If so, extreme care must be exercised in any analysis of it. This concern was considered by the drafters of the Revised Code of 1972. Thus, the comments to § 251 discuss the rationale for the imposition of strict criminal liability in some rare situations where: "It is considered so important to regulate some activities (such as selling unwholesome food, for example), that no excuse for noncompliance with the law can be tolerated." The drafters go on to warn, however:
Delaware Criminal Code with Commentary § 251, p. 39.
"On the other hand, no serious offense ought to be an offense of strict liability, not because the desire for obedience to the law is any less, but because the stakes for the defendant are so high that he deserves every opportunity to prove his innocense."
Id.
The State takes the position that this is not a strict liability statute, because B in this case, for instance B there exists the intent to changes lanes without safety. That, the States says, creates the exercise of state of mind.
Such position seems, at best, attenuated. The status necessarily required would be that functioning "in violation of any provision of this chapter" provides the clarity to avoid vagueness. That is, the provision informs ordinary people of what conduct is prohibited. "ccepting that requires the consideration of "any provision of his chapter," and whether an ordinary person reasonably would know that such an act could lead to a § 4176A ramification. So, we look, simply by way of a couple of illustrations, at whether peoples' expectations are aroused by various circumstances. If a farmer is operating a slow-moving vehicle without properly turning off the roadway, and the fifth car behind him pulls out to pass, hits an oncoming vehicle and kills himself, is the farmer in violation of § 4176A(a) irrespective of the decedent's actions, simply because of his violation of § 4125? If a person expects to cross an intersection, but the traffic ahead backs up, not providing room for him to complete his journey across the intersection, when another driver, traveling in a perpendicular direction, speeds into the intersection, slamming into the first's stopped vehicle, killing himself, is the first driver in violation of § 4176A, irrespective of the decedent's actions, simply because of his violation of § 4130? "re those hypothetically charged drivers obligated to be on notice of their potential liability for a violation exposing themselves to felony level jail time simply by a violation of "any provision" of this chapter? Or, is § 4176A vague for its failure to put ordinary people on notice that certain activities could lead to such draconian requests?
Grave, 658 ".2d 1011 at1015.
Moreover, in this particular situation, the predicate offense involves a violation only when the driver fails to ascertain that a lane change can be made with safety. What is required there? The determination by the drive of the requirement of the ascertainment of safety is necessary.
When a person determines whether or not he can leap into a swimming pool safely, he takes into consideration whether he has done so safely many times before; and whether there is anything observable in the water presenting a potential problem. If the answers are, respectively, yes and no, he ascertains that he is safe in jumping in. If it turns out that a piece of unanticipated and indiscernible glass cuts him, it does not mean that he acted without taking safety precaution, whether or not the pool owner gave him permission. Similarly, if a driver knows that he has safely taken a particular path home many times; and that there is nothing observable in the pathway presenting a potential problem; he ought to be able to take that path that night without the claim that he took it absent ascertaining safety. Now, here, the State may not agree to such a hypothesis. That is not the point.
The issue is that, because of such considerations, a § 4176A violation is imprecise, failing to give the ordinary persons legitimate warning that such activities could bring about the criminal liability sought here by the State. The danger of unfair, inconsistent application of the severe § 4176A penalties is rife.
The Defendant's second argument is that, even if § 4176A is not considered to be unconstitutionally vague in its enforcement or application, the Court necessarily must read some level of mens rea into the statute. The Pennsylvania Supreme Court, in Commonwealth v. Heck was presented with a statutory provision contained within their motor vehicle code that was similar to the provision in the case sub judice. "t the time, the applicable statute confronting the Heck Court, 75 Pa.C.S. § 3732, Homicide by Vehicle, read: "Any person who unintentionally causes the death of another person while engaged in the violation of any law of the Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death." In Heck, the Court determined, for the first time, what level of culpability was required by the statute. The Court stated that "ordinary negligence will not sustain a conviction for the offense of homicide by vehicle." Rather, the Court looked to 18 Pa.C.S. § 302(a), Pennsylvania's statute regarding the minimum requirements of culpability, which required that for a person to be found guilty of a crime he must "have acted intentionally, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense." The Pennsylvania Court held that the mens rea required by 75 Pa.C.S. § 3732 was negligence such that, with respect to a material element of an offense, "the person should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation." The Court stated that negligence under the Pennsylvania statute plainly meant criminal negligence. Additionally, both the Supreme Courts of New Mexico and Vermont have, when presented with similar statutes, responded with similar interpretations as the Heck Court. traffic" that causes a person's death. The statute looks first to the underlying violation to supply the mental element necessary for conviction. Because the underlying offense could be the violation of any motor vehicle law, many of which require no mens rea, the statute in effect imposes strict liability for vehicular homicide. We have often implied guilty intent as an element when none was expressly provided by the statute." The Court held that 23 V.S.A. § 1091(c) was "a criminal homicide statute which imposed the same penalty as Vermont's manslaughter statute, 13 V.S.A. § 2304." The Court had previously noted in State v. Stanislaw, 573 ".2d 286, 290 (Vt. 1990), that "[t]he legislature could not have intended to subject a person to a sentence of this duration without requiring the State to show that the defendant bore some fault in causing the death of another." Therefore, following its previous holding and reasoning the Court ruled that "a violation of 23 V.S.A. § 1091(c) requires, at a minimum, a mens rea of criminal negligence.") Part of the reasoning behind all of these rulings is that the statutes at issue, including the one before this Court, are essentially misdemeanor manslaughter statutes. "ccording to one noted treatise on criminal law, "[t]he misdemeanor manslaughter rule has been abandoned in England, by the Model Penal Code and in a growing number of states. Manslaughter is now committed in such jurisdictions, whether the act be lawful or unlawful, only if the death is caused recklessly or with criminal negligence."
535 ".2d 575 (Pa. 1987).
Id. at 576.
Id. at 579.
Id.
Id. at 579-580 (quoting 18 Pa.C.S. § 302(b)(4)).
Id. at 580.
State v. Yarborough, 930 P.2d 131, 133 (N.M. 1996) (Defendant was charged with involuntary manslaughter by careless driving. The involuntary manslaughter statute, N. M. S. ". 1978, § 30-2-3(B), stated: "Involuntary manslaughter consists of manslaughter committed in the commission of an unlawful act not amounting to felony, or in the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection."); State v. Beayon, 605 ".2d 527, n. 2 (Vt. 1992) (Under 23 V.S.A. § 1091(c), AA person who, while engaged in the violation of any law, ordinance or regulation applying to the operation or use of a motor vehicle or to the regulation of traffic, causes, as a result of the violation, the death of any person shall be fined not more than $3,000.00, or imprisoned not less than one year nor more than 15 years, or both. The provisions of this section do not limit or restrict prosecutions for manslaughter.").
Yarborough, 930 P.2d at 138 (A[C]riminal negligence has been required in this jurisdiction for involuntary-manslaughter convictions arising out of automobile accidents, and it is required by most of the jurisdictions that still apply the misdemeanor-manslaughter rule. We believe that the law in this area mandates that a felony conviction be based upon more than ordinary negligence. For the reasons stated above, we hold that the State must show at least criminal negligence to convict a criminal defendant of involuntary manslaughter."); Beayon, 605 A.2d at 528 (The Court stated that a plain reading of "1091(c) demonstrated that it contained no express mens rea requirement. Instead, it predicates an infraction on the violation of "any law, ordinance or regulation applying to the operation or use of a motor vehicle or to the regulation of
Charles E. Torcia, Wharton's Criminal Law, § 168 (15 ed. 1994)
The Model Penal Code considers any misdemeanor-manslaughter rule to be objectionable, since "it dispenses with proof of culpability, and imposes liability for a serious crime without reference to the actor's state of mind. This result is not only morally unjustified, [the Model Code suggests] but it operates quite inequitably among individuals." "pplication of the rule in the context of traffic offenses underscores the point. For example, "speed limits are in part set to prevent accidents dangerous to life. Occasionally, speeding causes the death of another in circumstances in which the actor was unaware of the risk of death and [theoretically at least] cannot even be judged negligent with respect thereto. Subjecting such a driver, who is engaged in behavior so like many others, to a severe prison term introduces an unfair haphazardness into criminal punishment." It is for this reason that the Model Penal Code rejects any form of strict liability in the law of homicide.
"merican Law Institute, Model Penal Code and Commentaries, § 210.3, Comment 7 (1980).
Id.
Id.
Another noted treatise states that the modern tendency is to abandon the whole concept of involuntary manslaughter based upon unlawful conduct alone (unlawful act manslaughter or misdemeanor manslaughter), thereby leaving the field occupied solely by involuntary manslaughter based upon criminal negligence or recklessness.
"There is no logical reason for inflicting manslaughter punishment on one who unintentionally kills another simply because he is committing a traffic violation, unless it makes sense to punish the one-in-a-thousand traffic violation, which by bad luck produces an unexpected death, far more severely than the nine hundred and ninety-nine violations which happily do not produce any such devastating result."
LaFave Scott, Substantive Criminal Law § 7.13(e) (1986).
Id.
Furthermore, in the case of crimes defined in terms of bad results, it is often something of an accident whether the specified result occurs or not.
"If the bad result which happens is actually intended, or it is recklessly produced, it does not seem too harsh to make the severity of his punishment depend somewhat on the actual result, however accidental. Where, however, the result is both unintended and produced without any consciousness of the risk of producing it, it seems too harsh and illogical. Involuntary manslaughter, therefore, ought, on principle, be limited to the situation of unintended homicide by criminal negligence. The modern trend is properly in this direction."
Id.
Id.
Certainly, I recognize Judge Graves' analysis, reflected primarily on page 5 of his Opinion, that "a misdemeanor conviction causes less damage to one's reputation than a felony conviction," and that a § 4176A conviction is expressly stated as a misdemeanor. Given, however, the dire penalties of this statute, as earlier described, I would view a conviction here as being hung for a sheep, not a goat B a distinction always lost on the subject.
Turning to the statute at issue here, given the history of our laws in this area; and observing the modern trend regarding such statutes, which this State has heretofore followed; I find it difficult to conceive that the Legislature, in enacting 21 Del. C. § 4122, contemplated circumstances such as those in the case at bar and intended them to create a criminal ramification subjecting the utterly unnotified driver to 2 1/12 years of incarceration pursuant to § 4176A. The actions involved in this case demonstrate, at most, a classic example of simple negligence, showing B in the context and circumstances of this case B the foundation and purpose of civil or tort law. If the defendant was negligent, and if the victim was not more so, then the processes in the civil law will address the losses of the heirs of the victim. Neither cash from nor incarceration of Defendant will revive this victim. Still, tort law addresses the issue as well as the law can. Criminal law is not well suited to address circumstances as those earlier hypothesized or those found in the instant case.
To the same effect, I believe, is another point Judge Graves makes at the close of his opinion, i.e.: a driver is charged with knowing when his conduct runs afoul of the Motor Vehicle Code. While operation of presumed knowledge could be argued to jeopardize even the slow-moving farmer or the intersection blocker in situations hypothesized, it cannot jeopardize someone who, as the Defendant here, had no such knowledge. He didn't know his conduct ran afoul of anything, because he had no idea that his lane change was not a safe one. That is so, because the object causing actual danger was not reasonably ascertainable in any timely fashion.
A state of mind sufficient to establish the offense is not prescribed by the statute to prove the offense was committed with some level of lack of care as required by 11 Del. C. § 251(b), and consistent with the holdings of numerous other jurisdictions. Thus, the Defendant's assertion is well taken that the Court should find that the statute imposes strict liability, without such an intent to impose such a requirement plainly appearing; and that, as such, a mens rea must be read into the statute.
"When the state of mind sufficient to establish an element of an offense is not prescribed by law, that element is established if a person acts intentionally, knowingly or recklessly."
11 Del. C. § 251(c)(2) (AIt is unnecessary to prove the defendant's state of mind with regard to. . . (2) Offenses defined by Statutes other than this Criminal code, insofar as a legislative purpose to impose strict liability for such offenses or with respect to any material element thereof plainly appears.")
In relation to the case here under consideration, 21 Del. C. § 4176A is unenforceable for its being unconstitutionally vague and its failure to require any mens rea whatsoever.
Accordingly, on each of Defendant's positions, the Defendant's Motion is GRANTED.
SO ORDERED.