Opinion
66133-7-I
05-29-2012
STATE OF WASHINGTON, Respondent, v. ANTHONY FISHER, Appellant.
UNPUBLISHED
Cox, J.
Anthony Fisher appeals his conviction for felony vehicular assault. He claims that the trial court abused its discretion by failing to instruct the jury as to second degree negligent driving, which he claims is a lesser included offense. Further, Fisher argues that the court violated his right to due process because he was found to be strictly liability for driving while under the influence of a legally prescribed medication.
The vehicular assault statute criminalizes driving a vehicle and substantially injuring another while under the influence of any drug, even Ambien. And second degree negligent driving is a traffic infraction and not a crime. Therefore, Fisher's due process rights were not infringed nor did the trial court abuse its discretion. Consequently, we affirm.
In 2009, Fisher traveled by car to purchase a refill of Ambien, his prescription drug sleeping medication. He took his medication, and then, approximately twenty minutes later, began to drive home. While driving, Fisher struck a bicyclist, fracturing her rib and causing other serious injuries.
The State charged Fisher by information with vehicular assault. After closing arguments, Fisher requested that the trial court instruct the jury on second degree negligent driving. The court denied Fisher's request. The jury convicted him as charged.
Fisher appeals.
LESSER INCLUDED OFFENSE
Fisher argues that the trial court abused its discretion when it failed to instruct on second degree negligent driving, which he argues is a lesser included offense of vehicular assault. We disagree and hold there was no abuse of discretion in denying this request.
A defendant is entitled to a lesser included offense instruction if: (1) each element of the lesser included offense is a necessary element of the offense charged and (2) the evidence, when viewed most favorably to the defendant, supports that only the lesser crime was committed. We review a trial court's refusal to give a lesser instruction for abuse of discretion.
State v. Hahn, Wn.2d, 271 P.3d 892, 893 (2012) (citing State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978)).
State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998).
An individual is guilty of negligent driving in the second degree if "under circumstances not constituting negligent driving in the first degree, he or she operates a motor vehicle in a manner that is both negligent and endangers or is likely to endanger any person or property." Under RCW 46.61.522, a person is guilty of vehicular assault if he or she "operates or drives any vehicle" while "under the influence of intoxicating liquor or any drug, as defined by RCW 46.61.502, and causes substantial bodily harm to another . . . ."
(Emphasis added.)
Here, the trial court did not abuse its discretion when it refused to instruct on second degree negligent driving. Negligent driving in the second degree is a traffic infraction. As Division Two of this court noted in State v. Farr-Lenzini
93 Wn.App. 453, 970 P.2d 313 (1999).
[a] person cited for an infraction can respond in a number of ways, such as by paying a penalty or requesting a contested hearing. There is no right to a jury at a contested traffic infraction hearing. And the State's burden of proof is only a preponderance of the evidence. Thus, the Legislature clearly removed this offense from the arena of criminal litigation and procedure. To instruct the jury to consider it as a lesser included offense of the criminal offense of reckless driving would be contrary to this clear legislative intent.As in Farr-Lenzini, it would have been improper for the court to instruct the jury based on a traffic infraction. Thus, the court did not abuse its discretion.
Id. at 467.
Fisher argues that second degree negligent driving is a lesser included offense of vehicular assault in that all of the elements outlined in RCW 46.61.525 are necessary elements of vehicular assault. But, as noted above, because this statute outlines a traffic offense, it cannot be a lesser included offense. Furthermore, the evidence, even when viewed in the light most favorable to Fisher does not support that only the lesser crime was committed. Fisher's actions satisfied the elements of the charged offense: he caused substantial bodily harm to another while driving under the influence of a drug. If did not fall within the elements of negligent driving. Thus, his argument is unpersuasive.
USE OF PRESCRIPTION DRUGS AND VEHICULAR ASSAULT
Fisher also contends that, because he was lawfully using a prescription drug at the time of the accident, his conviction for vehicular assault violated his due process rights. Because the vehicular statute clearly encompasses Fisher's behavior, and because it is within the Legislature's power to craft strict liability crimes, we disagree.
"Our primary duty in interpreting any statute is to discern and implement the intent of the legislature." A statute is unambiguous when it is not susceptible to two or more interpretations. When statutory language is unambiguous, the court gives effect to the plain meaning of the statute. The court cannot add words to an unambiguous statute when the legislature has chosen not to include them. The meaning of a statute is a question of law that this court reviews de novo. We also review alleged due process violations de novo.
State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003) (citing Nat'l Elec. Contractors Ass'n v. Riveland, 138 Wn.2d 9, 19, 978 P.2d 481 (1999)).
State v. Delgado, 148 Wn.2d 723, 726-27, 63 P.3d 792 (2003) (citing State v. McGee, 122 Wn.2d 783, 787, 864 P.2d 912 (1993)).
J.P., 149 Wn.2d at 450 (quoting Riveland, 138 Wn.2d at 19).
Id. (citing Delgado, 148 Wn.2d at 727).
State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007).
As noted above, a person is guilty of vehicular assault if he drives a vehicle while "under the influence of intoxicating liquor or any drug, as defined by RCW 46.61.502(b), and causes substantial bodily harm to another . . . ." RCW 46.61.502(b) states that a person is guilty of driving under the influence if he drives a vehicle within this state while under the influence of or affected by intoxicating liquor or any drug. Further, section 2 of that statute makes clear that being under the influence of a legally prescribed drug does not constitute a valid defense. "The fact that a person charged with a violation of this section is or has been entitled to use a drug under the laws of this state shall not constitute a defense against a charge of violating this section." Additionally, under RCW 46.61.540, the word "drugs" "shall include but not be limited to those drugs and substances regulated by chapters 69.41 and 69.50 RCW." These chapters include regulation of medicines such as prescription sleep aids. Thus, the plain language of this statute is clear. A person commits vehicular assault if he drives a vehicle while under the influence of any drug and subsequently causes substantial bodily harm to another.
(Emphasis added.)
(Emphasis added.)
RCW 46.61.502(2).
See RCW 69.41.010(9).
Here, it was undisputed that Fisher was driving a vehicle while under the influence of a prescription drug, Ambien. Because this drug falls within the definition of "any drug" used in the vehicular assault statute, the trial court did not violate his due process rights when it accepted the jury's finding of guilt.
Fisher argues that the supreme court's decision in Kaiser v. Suburban Transportation System supports his argument that the trial court's interpretation of RCW 46.61.522 was incorrect. But Kaiser is unpersuasive. There, in dictum, the court indicated that a driver might avoid civil liability for injuries to another caused by the driver's medication and consequent loss of consciousness. But, as noted above, the plain language of the criminal statute regarding vehicular assault is clear: an individual is guilty if he drives a vehicle while under the influence of any drug and causes substantial bodily harm to another. The Legislature's clear intent does not support the dictum of the divided court in Kaiser.
65 Wn.2d 461, 398 P.2d 14 (1965) (abrogated on other grounds by Pederson v. Dumouchel, 72 Wn.2d 73, 431 P.2d 973 (1967)).
There, a bus passenger was injured after the driver lost consciousness due to certain medication he had taken. It was a civil, not a criminal case, and consequently, the court was interpreting the bus driver's culpability under a negligence standard, rather than according to a criminal statute. Further, the court held that it was for the jury to determine whether the bus driver had been warned of the possible effects of the drug. Here, the vehicular assault statute is clear.
Kaiser, 65 Wn.2d at 462-63.
Id. at 468.
Fisher also appears to argue that the statute itself violates due process because it creates a strict liability crime. In its analysis of the vehicular homicide statute, the supreme court concluded that "the Legislature may create strict liability crimes—crimes which include no culpable mental state." Thus, the Legislature's decision to make vehicular assault a strict liability crime is within its discretion, and not an abuse of a defendant's due process rights.
State v. Rivas, 126 Wn.2d 443, 452, 896 P.2d 57 (1995).
Additionally, Fisher contends that the trial court's Jury Instruction 5 rendered him strictly liable for the accident because it directed the jury to find that his use of Ambien, a lawfully prescribed drug, automatically constituted "any drug" within the definition of the statute. A trial court's "decision whether to give a particular instruction to the jury is a matter that we review only for abuse of discretion." Further, we consider a claimed error in a jury instruction only if the specific issue was timely raised to the trial court by a specific adequate exception to that instruction. Because the record before us does not indicate that Fisher timely raised an adequate exception to Instruction 5, we need not consider Fisher's objections to the jury instruction. We affirm the judgment and sentence.
Anfinson v. FedEx Ground Package Sys., Inc., 159 Wn.App. 35, 44, 244 P.3d 32 (2010).
See Van Hout v. Celotex Corp., 121 Wn.2d 697, 702, 853 P.2d 908 (1993).