Felony Vehicular Homicide Georgia – 5 Serious Driving Offenses

5 Serious Driving Offenses Support Felony Vehicular Homicide Georgia

By: William C. Head – Atlanta DUI Attorney and Homicide by Vehicle Lawyer

The 5 Serious Driving Offenses Behind a Felony Vehicular Homicide

The Georgia Legislature has identified 5 serious driving offenses that pose a higher likelihood of catastrophic consequences in motor vehicle accident cases in Georgia. These are the five first degree vehicular homicide “predicate offenses,” which our lawmakers have decided are serious enough to categorize as felony cases.

If the person arrested in Georgia for a 1^st Degree Vehicular Homicide charge has been arrested for any of the following five serious misdemeanor traffic offenses, a felony homicide by vehicle indictment or accusation is likely to be pursued by the District Attorney of the county where the person was struck, regardless of where he or she later died.

A felony homicide by vehicle in Georgia can be indicted if the driver commits any of these traffic offenses:

1. DUI – any type of DUI less safe or per se DUI supports vehicle homicide. OCGA 40-6-391.
2. Fleeing or attempting to elude a police officer. OCGA 40-6-395.
3. Hit and Run (leaving the scene of an accident with a pedestrian or occupied vehicle) as proscribed by OGCA 40-6-270.
4. Overtaking or passing a stopped school bus discharging students, or where “stop:” flag was fully activated. OCGA 40-6-163.
5. Reckless driving, as prohibited by OCGA 40-6-390.

Misdemeanor Vehicle Homicide Caused by Non-Serious Traffic Offenses

Other than the five (5) serious “predicate” driving offenses set forth above, all other misdemeanor traffic offenses do not enhance a fatality from a motor vehicle accident to a felony vehicular homicide case. All other traffic citations that are issued as the proximate cause of death are called “second degree vehicular homicide,” which has misdemeanor punishment of no more than 12 months in the county jail.

If a person commits a minor motor vehicle offense (traffic offense) and unintentionally causes the death of another person (pedestrian, occupant of the driver’s vehicle, or a person in another vehicle), this is a misdemeanor criminal offense so long as it is not one of the listed five (5) serious driving acts covered by the felony homicide by vehicle law. See OCGA. 40-6-393(a)(b) and (c).

These five serious predicate offenses are vehicle homicide by DUI, hit and run, attempting to elude a law enforcement officer, passing a stopped school bus discharging children, or reckless driving.

Misdemeanor vs Felony Vehicle Homicide in Georgia

Other than these five exceptions, all other traffic tickets are considered simple misdemeanor “predicate offenses” which only result in potential misdemeanor punishment. This distinction is particularly important in potential incarceration punishment for the crime. People convicted of misdemeanors get sentenced to county jails, while felons go to State Prison.

First degree homicide by vehicle –From 3 to 15 years in state prison per death (an HV habitual violator driver involved in a homicide by vehicle has an enhanced range of minimum and maximum punishment, 5-20 years in state prison). The same rules apply to vehicular feticide cases.

Second degree homicide by vehicle – up to 12 months in the county jail per deathwhere the person is convicted.

Note that if multiple people die as a result of the arrested driver’s bad driving, the jail terms and other punishment can be stacked in a CONSECUTIVE manner. So, on a DUI first degree vehicular homicide with four deaths, the convicted driver can face 60 years in state prison in Georgia, and an HV driver convicted of 4 counts of felony vehicular homicide in a new DUI homicide would face up to 80 years in state prison.

Also, if a death occurs by operation of a motor vehicle and any lesser (non-serious) traffic offense was committed that leads to the unintended death of another person (e.g., running a red light, not yielding to a car that had the right of way, stop sign violation), this will typically be charged as a second-degree vehicular homicide, which is a misdemeanor.

Misdemeanor Vehicular Homicide Is Second Degree Homicide by Vehicle

Any misdemeanor traffic violation that is the proximate cause for the death of another person can be accused as a second-degree vehicular homicide case. By the way of example, these common traffic citations are among the most underlying misdemeanor traffic offenses leading to a 2nd degree homicide by vehicle charge:

• Running a red light
• Failure to stop at a stop sign
• Failure to yield right of way
• Failure to maintain lane
• Speeding
• Too fast for conditions
• Distracted driving such as texting while driving

Any vehicular homicide in the second degree such as texting while driving has a maximum incarceration term of 12 months at a county detention center, which is starkly different from a 1st degree homicide by vehicle, that comes up to 15 years in state prison for each death, which can be sentenced consecutively in Georgia.

1st Degree Vehicular Homicide in GA by DUI From Low Unlawful BAC Level

Georgia DUI laws allow conviction of driving under the influence multiple ways, including simply having an unlawful BAC (blood alcohol content) at the time of driving event that led to the person’s death.

So, if an underage driver is convicted of a DUI by being over the legal limit for drivers under age 21, and the “number” was 0.022 [far below the presumed impairment level under GA-DUI laws – OCGA 40-60-392(b)] — he or she can be convicted and sentenced under the felony homicide law in Georgia. See David v. State, 261 Ga. App. 468 (2003).

[NOTE: This is a Gwinnett County vehicle homicide case that Atlanta DUI lawyer William C. Head appealed, after Mr. David’s previous lawyer convinced him to plead guilty to a case that should have gone to trial, but did not].

Consult with the criminal defense attorney in Atlanta that is a Board-Certified DUI defense lawyer.

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