Friday, February 24, 2006

Drunk driver in fatal crash may not be convicted of both automobile homicide and DUI

State v. Perez-Avila, 2006 UT App 71

The court of appeals held that DUI is lesser-included offense of automobile homicide and that a defendant cannot be convicted of both offenses in the same course of conduct.

Perez-Avila rolled his pickup truck on I-15 just south of Leeds, Utah. The accident killed his pregnant wife and seriously injured his two children. A sample of Perez-Avila’s blood taken shortly after the accident contained three times the legal limit of alcohol. He was subsequently convicted of a variety of charges, including two counts of automobile homicide and one count of DUI.

On appeal, Perez-Avila claimed his claimed his trial counsel was ineffective for (1) failing to move to suppress the blood-alcohol evidence and (2) failing to move to merge the DUI conviction into the automobile homicide convictions.

The court of appeals found no ineffectiveness in the first claim because a motion to suppress would have been futile. Perez-Avila was unconscious when his blood was drawn, and under Utah’s implied consent law, a DUI suspect’s implied consent remains in force if he is dead, unconscious, or otherwise incapable of refusing consent.

As to the second claim, the court found that trial counsel was ineffective because a motion to merge the offenses would have been granted. The court first noted that DUI is a lesser included offense of automobile homicide because all of the elements of DUI must be established to prove automobile homicide. Compare Utah Code Ann. § 44-6a-502 and Utah Code Ann. § 76-5-207. Under the merger doctrine found in Utah Code Ann. § 76-1-402, the offenses should merge.

The State argued, however, that auto homicide is an enhancement offense, similar to felony murder. That is, it takes an act that is a lesser crime or no crime at all and enhances it to a greater crime based on a predicate offense. The Utah Supreme Court carved out an exception to the merger doctrine for enhancement offenses in State v. McCovey, 803 P.2d 1234 (Utah 1990). The State asserted that DUI is a predicate offense to auto homicide because it raises a class A misdemeanor negligent homicide to a second degree felony when the actor also commits DUI.

The court disagreed. It concluded that the supreme court’s recent opinion in State v. Smith, 2005 UT 57, limits the exception in the merger doctrine for enhancement offenses. The exception only applies when there is a clear legislative intent to create an enhancement statute. The court gave two examples when this might occur.

First, the statute might create a graduated punishment scale within itself based on the commission of other offenses. For example the crime of carrying a concealed weapon is enhanced if the offense is committed in conjunction with a crime of violence like aggravated assault. In such a case, aggravated assault is a predicate offense that enhances the penalty for carrying a concealed weapon.

Second, the statute might explicitly state that it should not merge with lesser offenses. The burglary statute, for example, lists the offenses that turn criminal trespass into burglary and then states that burglary is a separate offense from any of those offenses.

The auto homicide statute does not fit either of those circumstances. It does not explicitly state that it is a separate offense from DUI. Nor does the level of the offense change within the statute based on the commission of DUI. Auto homicide changes its level of offense based on the mens rea—criminal negligence as opposed to simple negligence—not the commission of DUI. Thus it is not a true enhancement offense, and a drunk driver involved in a fatal accident may not be convicted of both auto homicide and DUI.


Blogger Charley Foster said...

I'm intrigued by the suppression issue because an appeals court case, State v. Rodriguez, 2004 UT App 198, suppressed a blood test using a totality of the circumstances test to determine whether a warrant was required where the defendant was conscious and neither consented nor refused consent. But here it looks as though the statute specifically addresses cases in which the defendant is dead or unconscious.

4:49 PM  

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