Posted on September 10, 2015

Los Angeles Vehicular Manslaughter Defense Attorney: California Penal Code § 192(c)

Vehicular manslaughter is an unintentional homicide caused by your gross or ordinary negligence while operating a motor vehicle. If the prosecutor determines that you were operating your vehicle with “gross negligence” and caused the death of another, then you will be charged with felony gross vehicular manslaughter under California Penal Code § 192(c)(1). However, if the evidence does not rise to the level of “gross negligence” but instead demonstrates “ordinary negligence” then you will be charged with misdemeanor vehicular manslaughter under Penal Code § 192(c)(2). Misdemeanor vehicular manslaughter is not often prosecuted because the prosecution will consider the underlying circumstances as well as consider the desires of the decedent’s family. Sometimes accidents are just accidents and the prosecution will decline to prosecute in the interests of justice. There is no clear line drawn between “gross negligence” versus “ordinary negligence” and this distinction is usually what’s litigated in the case. For example, the prosecution will claim that you were driving with felony gross negligence whereas your defense lawyer will be arguing that your conduct does not rise to the level of gross negligence but instead was misdemeanor ordinary negligence thereby minimizing your punishment exposure if convicted.

If you’ve been accused, arrested, or are under investigation for vehicular manslaughter, contact a Los Angeles Vehicular Manslaughter Defense Lawyer right away. Do not make any statements to law enforcement and do not make any statements to your insurance company. Let your lawyer do all the talking on your behalf because you may make incriminating statements that could jeopardize your ability in arguing a viable defense later on in the case. In addition, it is advised that you retain an attorney at the cases earliest possible juncture. The longer one waits, the more likely crucial pieces of evidence are liable to be lost or destroyed impacting your ability to defend the charges against you. For instance, video footage from surrounding businesses and/or residences before the footage is recorded over and speaking with eyewitnesses before their memories fade or no longer recall specific critical details of the incident. Do not presume police officers will conduct a thorough investigation because most of the time, they will only collect evidence tending to demonstrate your guilt versus innocence. Therefore, early intervention by a lawyer is necessary to fully protect your rights and defenses.

Elements of the Crime

In order to prove that you are guilty of vehicular manslaughter under P.C. § 192(c), the prosecutor must prove all the elements of the offense beyond a reasonable doubt. The elements are relatively the same for felony and misdemeanor vehicular manslaughter except, as noted above, whether your conduct was grossly negligent or you were acting with ordinary negligence.

Under CALCRIM 592, to prove you are guilty of gross vehicular manslaughter, the prosecutor must prove:

1. Defendant drove a vehicular or operated a vessel

2. While driving or operating a vessel, defendant committed an act that might cause death

3. Defendant committed the act with gross negligence

4. Defendant’s gross negligence caused the death of another

Under the misdemeanor theory of vehicular manslaughter under CALCRIM 593, the prosecutor must prove:

1. Defendant drove or operated a vessel

2. While driving or operating a vessel, defendant committed an act that might cause death

3. Defendant committed the act with ordinary negligence

4. Defendant’s negligent conduct caused the death of another

Vehicular Manslaughter Defenses

• There is insufficient evidence to prove that your conduct amount to gross negligence to sustain the charges as a felony justifying reduction to a misdemeanor or perhaps dismissal.

• Your conduct was not negligent under the circumstances and you were acting as a cautious reasonable prudent person.

• The prosecutor is unable to prove that you were the driver of the vehicle.

• You are falsely accused because your vehicle matched the description of the vehicle which committed the homicide.

• Your conduct did not cause the death of another. Perhaps there are additional factors that play a role into causing the death. For instance, gross malpractice or intentional conduct committed on part of the hospital treating the victim. Note however, the prosecutor need only prove that you were the substantial factor for the cause of death.

• The evidence obtained against you was the resulted in a violation of your Miranda rights under the Fifth Amendment of the United States Constitution.

• The evidence against you was obtained in violation of your Fourth Amendment search and seizure rights under the United States Constitution.

• The decedent was not acting as a reasonable person – e.g., suddenly running into the street.

Penalties

The punishment for vehicular manslaughter is different depending upon whether you were convicted under the felony gross vehicular manslaughter charge or misdemeanor vehicular manslaughter charge. If you’re convicted of felony vehicular manslaughter under P.C. § 192(c)(1), you face 2, 4, or 6 years in California state prison. However, if you’re convicted of misdemeanor vehicular manslaughter under P.C. § 192(c)(2), you face up to 1 year in the county jail. In addition, you will placed on probation for a period of 3 years. The court will also impose restitution to be paid to the victim’s family.

Charge Enhancements

There may be additional enhancements the prosecutor can elect to charge if there is evidence to justify the enhancements. In particular, if you fled the scene of the accident, not only could be charged with California Vehicle Code § 20001 – hit and run, but the prosecutor can allege an enhancement under California Vehicle Code § 20001(c) which adds an additional 5 consecutive years in state prison if you fled the scene of the accident. For instance, if you are convicted of felony vehicular manslaughter, the court can sentence you to 6 years in prison. If the enhancement is found to be true, the court can sentence you to an additional 5 years. Therefore, your exposure can be up to 11 years in California state prison.

What is “Gross Negligence” and “Ordinary Negligence”?

Ordinary negligence is defined under the California Jury Instructions as “Failure to use reasonable care to prevent reasonably foreseeable harm to oneself or someone else. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation. On the other hand, “gross negligence” involves “more than ordinary carelessness, inattention, or mistake in judgment. A person acts with gross negligence when: 1) he or she acts in a reckless way that creates a high risk of death or great bodily injury; and 2) a reasonable person would have known that acting in that way would create such a risk.” Moreover, “a person acts with gross negligence when the way he or she acts is so different from how any ordinary careful would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of the act.”

Examples the prosecutor will use when arguing that you acted with gross negligence is:

• You were under the influence of alcohol or drugs or both
• You were speeding or ran a stop sign at the time of the collision
• You were on your cellular device at the time of the collision
• You struck the decent in a crosswalk or area designated for pedestrians
• Your view of seeing the decedent was not obstructed – e.g., sunny clear day
• You were not wearing your mandatory proscribed glasses while driving
• You fell asleep while driving
• Whether you stopped immediately to render aid
• The area in which the collision occurred – i.e., residential versus commercial area

Permanent Driver’s License Suspension

When someone is killed as a result of your driving, the Department of Motor Vehicles will institute administrative proceedings to determine whether or not your license should be permanently restricted as a result of your conduct. These types of hearings are called Negligent Operator Hearings, also known as a “NOTS” hearing. Approximately 6 to 8 months after the incident, the DMV will send you notice of a hearing date to contest their accusation of you driving negligently. A hearing will be held, evidence will be presented, and afterwards, the DMV will make a conclusion about whether or not they should suspend your driver’s license. Note however, the DMV will institute these proceedings regardless of whether you’re arrested or the criminal case has been dismissed. At these administrative hearings, the DMV will have the burden of demonstrating that your negligent conduct was a substantial factor in causing the death of another. If you lose the hearing, your driver’s license will be suspended indefinitely. If you have received notice of the DMV intending to suspend your driver’s license as a result of a fatal collision, contact the Law Offices of John D. Rogers today.

Manslaughter Defense Investigation

When accused of committing a homicide offense, nothing less than a full defense investigation should be conducted on your behalf. By retaining the Law Offices of John D. Rogers, you will have access to numerous experts and defense investigators to examine the evidence and facts of the case searching for viable defenses on your behalf in an effort to reduce the charges or obtain an acquittal at trial. Most of the time, the police do not conduct a thorough investigation and/or only collect evidence that has a tendency to show your guilt versus your innocence. Indeed, all witnesses must be questioned by a defense investigator. Furthermore, the police will usually conduct an accident reconstruction analysis and draft a report of their findings. It’s pertinent that the defense have the opportunity to obtain that report, and have it reviewed by a defense accident specialists. In addition, critical pieces of evidence must be reviewed or obtained which include:

• Decedent’s medical records
• Video footage from adjacent businesses or residences or traffic signals
• Additional witness statements from those who observed the collision
• Law enforcement accident reconstruction report
• Your phone records and text message details
• All audio recorded evidence in this case
• Photographs of the scene of the accident

Reduction to a Misdemeanor

Penal Code § 193(c)(1) makes felony vehicular manslaughter with gross negligence a wobbler offense which means the prosecutor may elect to charge someone with a felony or a misdemeanor. Factors the prosecutor will consider when making that determination is your prior criminal history, a review of all the factors tending to show your negligence, whether you expressed remorse immediately after the accident, the desires of the decedent’s family, and whether you stopped immediately at the scene to assist in rendering aid to the decedent. In the event that you’re convicted of gross vehicular manslaughter as a felony, hope may not be lost. You may be eligible to reduce your conviction to a misdemeanor under Penal Code § 17(b) so long as certain conditions are met. For instance, you cannot have been sentenced to California state prison for this offense or you will be ineligible to reduce the conviction to a misdemeanor. A major consideration in determining whether the offense should be reduced to a misdemeanor is whether you suffered any probation violations. In addition, the court will want to know of a legitimate reason for seeking reduction other than “I just want to.” Military duty, child custody, employment, and immigration are common examples of legitimate reasons for seeking reduction. If you have been convicted of vehicular manslaughter and are seeking to reduce your conviction to a misdemeanor, contact the Law Offices of John D. Rogers.

Expungement

If you were convicted of vehicular manslaughter whether it be a felony or misdemeanor, you may be eligible for an expungement under California Penal Code § 1203.4. However, you must fall within a certain criteria for eligibility. For instance, the conviction you wish to expunge/dismiss must not have resulted in you being sentenced to California state prison. Furthermore, a major consideration in determining whether the court will dismiss/expunge your conviction is whether you violated the terms of your probation. Under California P.C. § 1203.4, upon proper petition, the court will reopen the case and withdraw its finding of guilt. The court will then dismiss the case pursuant to the 1203.4 statute. From that moment forward, you will be released from “all penalties and disabilities” as a result of the conviction. If you suffer from a conviction for vehicular manslaughter, contact the Law Offices of John D. Rogers to discuss your eligibility in expunging your record.

Examples

Dan was driving his car down a Los Angeles street on his way home from the local bar at 12:00 a.m. At the bar, Dan had a few glasses of beer with friends. Because he did not believe to be intoxicated or impaired to drive, Dan drove his car home instead of taking a taxi. While on his way home, Dan was speeding, traveling 55 in a 35 mph zone. Since it was dark out, Dan was not able to see Pat in the crosswalk. Dan saw Pat at the last second and slammed on his breaks. However, Dan was not able to stop on time and collided with Pat. Pat died immediately due to the collision. The police arrived on scene and arrested Dan for felony gross vehicular manslaughter. In this case, the prosecution will argue that Dan is guilty of felony gross vehicular manslaughter because his conduct of consuming alcohol and speeding on the road combined with striking Pat in an area designed for pedestrians amounts of gross negligent conduct.

Dan was driving his car down a Los Angeles residential neighborhood after lunch. While traveling the speed limit, a child ran into the middle of the street to chase a ball that had rolled into the street. Dan saw the child run into the street and immediately applied his breaks to avoid striking the child. Unfortunately, Dan was unable to stop on time and collided with the child instantly killing the child. The police arrive and conduct their investigation and arrest Dan for misdemeanor vehicular manslaughter. In this case, Dan’s defense lawyer would argue that the circumstances and evidence do not justify that Dan’s conduct amount to ordinary negligence. Moreover, a child ran into the street without looking both ways and Dan was driving the posted speed limit. Nothing in this case would demonstrate that Dan was acting negligent but rather the collision was a tragic accident and not criminal conduct.

Dan was speeding down the road near a Los Angeles school on Friday at 3:00 p.m. Previously, Dan had smoke marijuana and was falling asleep. Dan’s speed was 50 in a 25 mph while children were present. Dan accidently missed seeing a stop sign and collided with a child in the crosswalk. The child suffered great bodily injury. The paramedics arrived and began transporting the child to the hospital. The paramedics were confident that the child will be okay but on the side of caution decided to transport him to the emergency room. While in route to the hospital, the ambulance driver collided with another car. An investigation revealed that the paramedic was intoxicated and due to his negligence, caused the accident. As a result of the accident, the young child died from the subsequent accident injuries. Because the child died, Dan was arrested and charged with vehicular manslaughter. In this case, Dan’s defense attorney would argue that Dan did not cause the child to die. Dan only created injury and the paramedics were confident the child will be okay. If it wasn’t for the negligent operations of the ambulance driver committing an illegal act of driving while intoxicated causing the death of the child as a result, Dan would not have been charged with the homicide.

Related Offense

Penal Code § 187: Murder

Contact Us for a Free Consultation

If you’re under investigation, arrested, or charged with vehicular manslaughter under P.C. § 192(c), contact Los Angeles Criminal Defense Attorney John Rogers at the Law Offices of John D. Rogers. Call 877-888-9820 for a free consultation concerning your rights and defenses.

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