Opinion
No. 2D06-771.
Opinion filed December 20, 2006.
Appeal from the Circuit Court for Hillsborough County; Debra K. Behnke, Judge.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellant.
Arnold D. Levine and Robert H. Mackenzie of Levine, Hirsch, Segall, Mackenzie Friedman, P.A., Tampa, for Appellee.
CASANUEVA and CANADY, JJ., Concur.
The State appeals from the trial court's order granting Tracie Ann Elder's motion to dismiss the charge filed against her under section 316.027(1)(b), Florida Statutes (2004), for leaving the scene of a crash resulting in the death of a person. The trial court concluded that Elder could not be charged under the statute because Elder's car did not collide with another vehicle and, therefore, it was not involved in a crash. We disagree and reverse.
Elder was driving on Fowler Avenue in Tampa when she turned into the path of another vehicle, violating its right-of-way. The driver of the second car swerved to avoid a collision with Elder(s car, lost control of the vehicle, and drove off the road. The second car flipped over, ejecting a passenger and killing the driver. Elder left the scene. She was charged with leaving the scene of a crash with death under section 316.027(1)(b), which provides as follows:
The driver of any vehicle involved in a crash resulting in the death of any person must immediately stop the vehicle at the scene of the crash, or as close thereto as possible, and must remain at the scene of the crash until he or she has fulfilled the requirements of s. 316.062. Any person who willfully violates this paragraph is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Elder filed a motion pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), asserting that a motorist cannot be charged with leaving the scene of a crash unless there was actual contact between the two vehicles. The trial court agreed and granted Elder's motion.
In dismissing the charge, the trial court relied on C.J.P. v. State, 672 So. 2d 62 (Fla. 1st DCA 1996). In that case, C.J.P., who was on foot, approached the driver of a car in a threatening manner causing the driver to be alarmed. The driver accelerated her car suddenly to escape from C.J.P. and drove into a brick mailbox. After the collision, C.J.P. got into his car and left the scene. C.J.P. was found guilty of leaving the scene of an accident with injuries. On appeal from the order of disposition, the First District reversed, stating that to establish culpability under section 316.027 for leaving the scene of an accident, the prosecution had to prove that C.J.P. "was 'the driver of any vehicle involved in an accident resulting in the injury . . . of any person.' " Id. at 64. The First District concluded that "[t]he state failed to satisfy its burden as to the element of 'involvement' " because C.J.P. was not the driver of the car involved in the accident.Id.
Section 316.027 formerly made it a felony to leave the scene of an "accident." The statute was amended in 1999 to state that it is a felony to leave the scene of a "crash." See ch. 99-248, § 82, at 2586, Laws of Fla.
The State argues that C.J.P. is distinguishable because Elder was driving a car and, although her car did not crash, Elder was "involved" in the crash because her driving caused it. We agree. No Florida appellate court has addressed this situation, but several other state courts have held that drivers who caused accidents were "involved" in those accidents even if the car they were driving did not crash.See State v. Korovkin, 47 P.3d 1131, 1135 (Ariz.Ct.App. 2002) (holding in a prosecution for leaving the scene of an accident that a driver, by racing with another driver, actively participated in the immediate chain of events culminating in a collision between the other driver and a third car); Armstrong v. State, 848 N.E.2d 1088, 1092 (Ind. 2006) (holding that the duties imposed under a statute governing a driver's failure to stop after an accident causing death are triggered regardless of whether the driver's vehicle struck anything); Steen v. State, 640 S.W.2d 912, 914 (Tex.Crim.App. 1982) (holding in a prosecution for failure to stop and render aid that the defendant was "involved" in the collision where his improper lane change caused a passing vehicle to swerve to avoid hitting the defendant, resulting in a head-on collision between the passing and an oncoming vehicle); cf. State v. Perebeynos, 87 P.3d 1216, 1218-19 (Wash.Ct.App. 2004) (holding that the evidence was sufficient to support the finding that the defendant was "involved in an accident" within the meaning of the hit-and-run statute, even though he made no contact with another vehicle because the defendant's erratic driving caused another driver to swerve and hit a truck), review granted, 103 P.3d 1247 (Wash. 2005).
In this case, because Elder's driving caused the events leading up to the crash, she was "involved in a crash resulting in the death of any person" and was required by the statute to remain at the scene. Therefore, the trial court erred in dismissing the charges against her. Accordingly, we reverse and remand for further proceedings.
Reversed and remanded.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED