The STATE of Utah, Plaintiff and Respondent, v. Bert James DURRANT, Defendant and Appellant.
No. 14478.
Supreme Court of Utah.
March 14, 1977.
Other assignments of unconstitutionality of the Act have been considered, but we find them to be without merit. We hold the Act in question to be constitutional and therefore affirm the judgment of the trial court.
No costs are awarded.
CROCKETT, MAUGHAN, WILKINS and HALL, JJ., concur.
Kathryn Collard, Salt Lake City, for defendant and appellant.
Vеrnon B. Romney, Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., Salt Lake City, Noall Wootton, Utah County Atty., Provo, for plaintiff and respondent.
ELLETT, Chief Justice:
The defendant, while operating a motor vehicle during the nighttime upon the highway, collided with a backhoe parked on the opposite side of the highway where a trench was being dug. As a result of the collision one passеnger was killed and injury occasioned to others including the defendant.
The defendant was taken to a hospital and was attended by a doctor who directed a medical technologist (an employee of the hospital) to draw a sample of blood for
The defendant was tried and convicted of the crime of automobile homicide, a felony. He appeals claiming two errors: First, he asserts it was error to admit the result of the blood test into evidence; and Second, the court erred in instructing the jury regarding the amount of negligence required in the driving of his motor vehicle in order to make out the elements of the crime with which he was charged.
As to his first assignment of error the defendant relies solely upon the case of Gibb v. Dorius. 1 That case is of small value since it was decided by a divided court, three to two, and two of the three members who favored the decision are no longer with the court. It is also not controlling here for the reason that the extraction of the blood was done at the direction and under the supervisiоn of defendant‘s doctor. There is therefore no merit to that claim of error.
The next assignment requires a discussion as to the negligence with which the defendant drove and operated his vehicle. He does not contend that he was free from negligence in driving across the center of the highway and crashing into a backhoe on the opposite side of the road. He maintains that the driving must be in the nature of criminal negligence before he can be convicted.
The trial court instructed the jury as follows:
Instruction No. 6 provided:
Under the law of this State any person, while under the influence of intoxicating liquor to a degree which renders him incapable of safely driving a vehicle, who causes the death оf another by operating or driving any automobile in a negligent manner on a public highway or street shall be deemed guilty of a felony.
Instruction No. 8 provided:
Negligence is the failure to use ordinary and reasonable care in the management of one‘s property or person. It is the failure to do what an ordinary and reasonable person would have done under the circumstances, or the doing of what such person would not have done. The fault may lie in acting or in omitting to act.
The propriety or lack thereof of the above instruction depends upon the interpretation to be given to the following sections of our statute:
(1) A person commits criminal homicide if he intentionally, knowingly, recklessly, or with criminal negligence unlawfully causes the death of another.
(2) Criminal homicide is murder in the first and second degree, manslaughter, or negligent homicide, or automobile homicide.
The relevant provisions of
(1) Criminal homicide constitutes automobile homicide if the actor, while under the influence of intoxicating liquor, a controlled substance, or any drug, to a degree which renders the actor incapable of safely driving a vehicle, causes the death of another by operating a motor vehicle in a negligent manner. [Emphasis added.]
It is to be noticed that the statute only requires that the vehicle be driven in a negligent manner. How does thаt square with
Criminal negligence is defined in Ballentine‘s Law Dictionary as: “The neglect of a legal duty imposed either by statute or by the common law. . . .” Our own court defined the term in State v. Lingman2 as
If a person entrusts the operation of his automobile upon the public highways to a six-year old child, he would certainly be guilty of something “more than a mere thoughtless omission or slight deviation from the norm of prudent conduct.” (State v. Lingman, above). The same would be true if he entrusted the operation of his car on thе public highway to a person who is “under the influence of intoxicating liquor, . . . to a degree which renders the actor incapable of safely driving a vehicle, . . .”3 Likewise, it is also applicable if a person drives his own automobile while incapable of doing so because of being under the influence of intoxicating liquor.
The following statement is found in each of the cases cited in footnote 4 below:
“When a person is doing anything dangerous in itself, or has charge of anything dangerous in its use, and acts with reference thereto without taking those proper precautions which a person of ordinary prudence would have used under the circumstаnces and the death of another results therefrom his act or neglect is a criminal act against the person so killed even though his negligence does not amount to a wanton or reckless disregard of human safety or life.”4
The driving of an automobile upon the highways of this state by one who is so inebriated that he cannot safеly operate it is an act which is reckless and in marked disregard of the safety of others.
In the case of State v. Risk5 this court held:
It thus appears that the offense of automobile homicide may be made out by simple negligence in a person‘s driving while under the influence of intoxicating liquor if as a result thereof he causes the death of another person.
Negligent homicide requires more than carelessness or simple negligence. Automobile homicide does not require that degree of negligence which this Court held to be requisite to constitute negligent homicide as stated in the case of State v. Lingman.
Since the element of criminal negligence is present in this case, the question of thе propriety of the instruction given by the trial judge to the jury can be looked at in its proper light.
Once the question of driving under the influence of liquor is established, the crime of automobile homicide is made out by the death of another person by reason of operating the car in a negligent manner.6 It is to be observed that the mеre negligent operation of the automobile by a person so drunk as to render him incapable of driving safely is all that is required.
The court correctly instructed the jury and the defendant was properly convicted. The judgment is affirmed.
CROCKETT, J., and ERNEST F. BALDWIN, Jr., District Judge, concur.
HALL, J., does not participate herein.
MAUGHAN, Justice (dissenting).
The main opinion resorts to a law dictionary for a definition, which is given in thе statute. I submit the statute has superior authority. For this reason, and for those following, I dissent.
One of the rules of appellate review is to bring harmony to statutes, if we can. Today, in my view, we fasten into a whole chapter of the criminal code a note of disharmony; which requires one to look else-
We should be concerned, not only with the impact our decisions have on the participating litigants; we must be concerned with the impact our decisions have on the affairs of those not parties. No uniform body of law can be developed without such a view. We should reverse, and remand for further prosecution, if appropriate.
Defendant, while operating a motor vehicle during the nighttime, collided with a backhoe parked in the opposing lane of traffic in American Fork, Utah. One passenger was killed in the mishap and defendant and two other passengers were injured.
Defendant was tаken to American Fork Hospital for treatment. The doctor, who was rendering treatment to defendant, directed a medical technologist (employed by the hospital) to draw a sample of blood for purposes of cross-matching, in the event defendant needed a transfusion. The technologist was directed by the рolice officer to take another sample for the purpose of making a blood-alcohol test. Defendant sustained a fractured leg in the accident, and he was located in the x-ray room at the time the technologist drew the blood samples. Neither the doctor nor the nurse, attending defendant, were рhysically present in the x-ray room at the moment the blood was withdrawn.
Based on these facts defendant filed a motion to suppress the result of the blood-alcohol test. Upon an evidentiary hearing, the trial court denied the motion. On appeal defendant contends the trial court erred on the ground the seizure of his blood was not accomplished by one authorized to extract blood, as provided in
and the presence of a registered nurse and physician in the next room is insufficient.
In the Gibb case we ruled the words “duly аuthorized laboratory technician” in
Here, a responsible, licensed physician was attending defendant, and directed personnel of the hospital to perform certain acts, in connection with the treatment. Under such circumstances, defendant‘s blood test was administered by a “duly authorized laboratory technician.”
Defendant further contends the trial court erred by instructing the jury the negligence necessаry for commission of automobile homicide consisted of ordinary or simple negligence. Instruction No. 8, provided:
Negligence is the failure to use ordinary and reasonable care in the management of one‘s property or person. It is the failure to do what an ordinary and reasonable person would have done under the circumstances, or the doing of what such person would not have done. The fault may lie in acting or in omitting to act.
Instruction No. 6, provided:
Under the law of this State any person, while under the influence of intoxicating liquor to a degree which renders him incapable of safely driving a vehicle, who causes the death of another by operating or driving any automobile in a negligent manner on a public highway or street shall be deemed guilty of a felony.
Ordinary or simple negligence was all that was necessary to convict one of automobile homicide under prior Utah law as set forth in
(1) A person commits criminal homicide if he intentionally, knowingly, recklessly, or with criminal negligence unlawfully causes the death of another.
(2) Criminal homicide is murder in the first and second degree, manslaughter, or negligent homicide, or automobile homicide.
The relevant provisions of
(1) Criminal homicide constitutes automobile homicide if the actor, while under the influence of intoxicating liquor, a controlled substance, or any drug, to a degree which renders the actor incapable of safely driving a vehicle, causes the death of another by operating a motor vehicle in a negligent manner.
Under the new statutory scheme automobilе homicide is designated one type of criminal homicide. The legislature has confined criminal homicide to those instances where a person “intentionally, knowingly, recklessly, or with criminal negligence unlawfully causes the death of another.”
No person is guilty of an offense unless his conduct is prohibited by law and:
(1) He acts intentiоnally, knowingly, recklessly or with criminal negligence with respect to each element of the offense as the definition of the offenses requires; or
(2) His acts constitute an offense involving strict liability.
A person engages in conduct:
. . .
(4) With criminal negligence or is criminally negligent with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise in all the circumstances as viewed from the actor‘s stаndpoint.
Defendant contends the instruction concerning his negligence should have described the conduct required by
Defendant‘s argument is correct. The automobile homicide provision was modeled after
A highly relevant comment concerning the criminal homicide article merits review.
While we appreciate the practical value of such special provisions for vehicular homicides, we think they are unnecessary as the Code is drawn. The separation from manslaughter is accomplished by treаting negligent homicide as a distinct offense of lower grade. If the evidence does not make out a case of negligence, as negligence is defined in Section 2.02,3 we see no reason for creating liability for homicide, as distinguished from any traffic offense that is involved. If the evi-
by a driver while under the influence of liquor, is an offеnse within the contemplation of the statute.” Also see State v. Risk, Utah, 520 P.2d 215 (1974).
Under the Model Penal Code, death caused by an intoxicated driver may be manslaughter, a felоny of the second degree or negligent homicide, a felony of the third degree. The legislature departed from the provisions of the Model Penal Code and made negligent homicide a Class A misdemeanor and included automobile homicide, a felony of the third degree.
Here lies the gravamen. The automobile homicide section stands in contradiction to the elements of control of the two pertinent chapters of the code, viz.,
We are here presented with a clear illustration of problems which can be encountered in the wake of the adoption of a model code. The basic elements of control, and the rationale of the new code can alter the effect of a prior statute, which was not drawn with the code in mind.
WILKINS, J., concurs in the views expressed in the dissenting opinion of MAUGHAN, J.