Under Georgia law, the charge homicide by vehicle (O.C.G.A. § 40-6-393), more commonly known as vehicular homicide, involves allegations that the driver of a vehicle unintentionally caused the death of another person caused by the driver committing certain traffic violations. In Georgia, there is first degree vehicular homicide and second-degree vehicular homicide.
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A person can be charged with first degree homicide by vehicle if the individual unintentionally causes the death of another person while doing any of the following while operating a motor vehicle:
- Illegally passing a school bus (O.C.G.A. § 40-6-163(a));
- reckless driving (O.C.G.A. § 40-6-390);
- reckless stunt driving, such as drag racing (O.C.G.A. § 40-6-390.1);
- driving under the influence (DUI) (O.C.G.A. § 40-6-391);
- fleeing from a police officer after the officer has given clear indication to stop the vehicle (O.C.G.A. § 40-6-395(a)); or
- Causing an accident which causes the death of a person and then leaving the scene of the accident, more commonly known as “hit and run” (O.C.G.A. § 40-6-270(b)).
The above five events are distinct traffic offenses (misdemeanor crimes) themselves. For an individual to be charged with first degree vehicular homicide, the state must also charge the individual with one of the above offenses as well (sometimes referred to as an “underlying offense”). In any of these situations, the driver may be sentenced to 3 to 15 years imprisonment.
Additionally, if a person has been determined to be a “habitual violator” and causes an accident while driving when their license has been revoked, he or she can be found guilty of vehicular homicide in the first degree. In this situation, the punishment may be more severe. The court may sentence the driver to 5 to 20 years imprisonment. However, the judge has the discretion to instead order that only the first year of the sentence must be served in prison while the remainder of the sentence can be suspended, deferred, or served on probation.
A person can be charged with homicide by vehicle in the second degree if he or she causes the death of another person by committing any other traffic offense other than those mentioned above, such as driving without headlights on for example. In this situation, the judge must sentence the individual for a misdemeanor, meaning no more than twelve (12) months in jail, on probation, or up to a $1,000 fine or both. The judge can also order that the individual take a defensive driving course, suspend their license, or place conditions on their driver’s license.
Whether the charge is first or second degree vehicular homicide, the state must prove that the underlying offense was what caused the accident that resulted in the death of another. In other words, if an individual is driving recklessly weaving in and out of traffic, hits another car, and the other driver dies, the state must prove that if the individual had not been weaving in and out of traffic, the other driver would not have died. In the case of a DUI, however, the state only must prove that the driver who caused the death of another was under the influence of alcohol or drugs (usually done by a blood test). The state does not have to prove that the driver also committed an unsafe, separate act.
There are a few affirmative defenses one can raise if they are charged with vehicular homicide, particularly in the second degree. An affirmative defense differs from a regular defense. A regular defense is one raised to try to prove the accused did not or could not have committed the crime. With an affirmative defense, the accused does not necessarily deny they committed the offense they are accused of but instead try to introduce evidence that some external factor negates criminal responsibility for what would otherwise be a crime. Some common affirmative defenses in this context are:
- It was truly an accident. If the accused could not have avoided the collision that caused the death of another person due to circumstances beyond his control, he cannot be held criminally responsible. For example, extremely dense fog made a stop sign impossible to see so the driver unknowingly ran the stop sign. Because he failed to stop, he caused a crash with another vehicle resulting in the death of the other driver.
- The accused was not the proximate cause of a person’s death. If the actions of another person or some intervening force is the reason an individual died, the accused is not the proximate cause of death even if his vehicle was what actually caused the death. For example, someone suddenly runs out in the middle of the street when an oncoming car is one or two seconds away from passing. The car was going the speed limit and braked but could not stop in time, causing him to strike the pedestrian who died. The deceased’s own actions—running in front of an oncoming car—is the proximate cause of his own death, not the driver.
While not technically a defense, some courts may consider the decedent’s own negligence in determining an appropriate punishment for the driver-defendant. For example, a motorcycle and car are racing on the interstate (instigated by the motorcycle driver). The motorcycle gets ahead of and cuts off the car he’s racing. A third car in front of the motorcycle suddenly slams on their brakes, the motorcycle brakes, but the racing car behind him couldn’t stop in time and hits the motorcycle from behind. The motorcycle driver is thrown from his bike and killed on impact. The driver of the car he was racing with would almost certainly be charged with first degree homicide by vehicle because he was driving recklessly, and his conduct caused the death of another. However, some courts may acknowledge that the motorcycle instigated the race and was also driving recklessly and take that into consideration when sentencing the driver of the car, possibly resulting in a lesser sentence.
When defending someone accused of vehicular homicide in Georgia, our firm usually retains accident reconstruction experts, investigators and sometime medical experts to review the evidence and assist our clients in preparing a solid defense.
Our defense attorneys have helped clients successfully resolve serious vehicular homicide cases. We have also helped some of our clients avoid charges completely when we were able to convince prosecutors that evidence was insufficient to bring criminal charges.
If you or someone you know has been charged with vehicular homicide in Georgia, contact us to see if we may be able to help. The earlier we can start preparing a defense to these serious charges, the more likely it is we can help someone avoid a wrongful conviction.
