By: William C. Head, Atlanta Vehicular Homicide Lawyer – Serious Injury Lawyer
Vehicular homicide is a criminal offense that is charged against the driver of a motor vehicle. Under Georgia’s motor vehicle laws, which are sometimes called “rules of the road,” homicide by vehicle, or “vehicular homicide,” is the unintentional killing of another person while operating a car, truck, motorcycle, SUV, or other motorized vehicle while committing SOME type of moving violation.
Georgia laws distinguish between minor traffic offenses and serious traffic offenses by making the latter offenses felonies and the former misdemeanors.
Also, both under Georgia law and similar laws in other states, this category of offenses generally requires that the driving or operating must be causally connected to the crash, impact, or accident by evidence of violation of some “rule of the road” or other faulty driving behavior by the criminally-charged motorist behind the wheel.
Georgia has hundreds of misdemeanor traffic offenses, and a handful of felony traffic offenses, so virtually any traffic violation may support either a felony or misdemeanor vehicular homicide charge – if the prosecutor can connect the causal element to contributing to the death.
In other states, more than one type of statute exists with elements of unintentionally causing death while operating a motor vehicle act. Plus, each state has its own list of underlying serious traffic violations that can trigger a felony offense versus a misdemeanor “lesser offense.”
Depending on the state, and the elements that the prosecutor is able to prove at trial, the following is a list of the many related names of serious felony motor vehicle offenses, wherein a death is caused, that are used across the United States for their felony vehicular homicide crimes:
(NOTE: State names and corresponding abbreviations are shown at the bottom of this page.)
In Georgia, the crime of unintentionally causing death by way of operating or being in actual physical control of a motor vehicle is called “vehicular homicide,” or homicide by vehicle. This code section is OCGA 40-6-393. Whether the criminal charge will be a felony vs misdemeanor depends on the underlying traffic offense.
The key word here is “unintentional”, which distinguishes felony vehicular homicide in Georgia from murder. The difference between homicide and murder is that the State must prove intent to kill with murder.
Murder is premeditated homicide, and vehicular homicide is the causing of death of another person, by way of committing a traffic violation. Like all criminal cases in GA, homicide by vehicle crimes are defined in Georgia statutes by the Georgia General Assembly.
Similarly, the many different titles of similar crimes to vehicular homicide in Georgia show that each state’s Legislative branch of government puts both a “title” or description of the crime, and sets forth the underlying serious driving offenses that will trigger a felony vs misdemeanor crime. Most states have these well-known serious driving offenses as “predicate offenses” to enhance vehicular homicide to a felony: driving under the influence, reckless driving, hit and run (leaving the scene of an accident with an occupied vehicle or pedestrian), and eluding or attempting to elude a law enforcement officer.
Many states will add other inherently dangerous traffic violations, such as aggressive driving, racing, passing a school bus (with its stop “warning” equipment activated and discharging or loading children), speeding by 20 miles per hour over the posted limit, or similar other driving behaviors that would tend to put others at risk of suffering great bodily harm or death.
As stated above, whether a homicide (or a feticide or serious injury by vehicle) is classified as a felony or misdemeanor depends upon the misdemeanor underlying traffic offense that is proven to be associated with the death or serious bodily injury of another at the hand of the accused motorist. This article will highlight the EXTREME importance of hiring the best criminal defense attorney who is also a DUI lawyer in Georgia for these cases.
These 5 Serious Driving Offenses in GA Can Support First Degree Vehicular Homicide
The General 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 “first degree vehicular homicide predicate offenses.”
If the person arrested in Georgia for a vehicular homicide charge has been arrested for any of these 5 serious misdemeanor traffic offenses, a felony homicide by vehicle indictment or accusation is likely to be pursued by the District Attorney of the county when a person dies while the driver commits any of these traffic offenses:
Other than these five (5) serious “predicate” driving offenses, 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 DUI, hit and run, attempting to elude a law enforcement officer, passing a stopped school bus discharging children, or reckless driving.
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.
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 would face up to 80 years.
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.
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:
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.
When Multiple Deaths Occur in One Accident, The Charges Do Not Merge, and Prison Time Can Be Consecutive
Intent to harm, or malice, has never been an “element” of unintentionally causing the death of another person in a motor-related vehicle accident. Both types of vehicular homicide, in the 1st degree or 2nd degree, are not alleging that the driver MEANT to kill another person. Yet, felony punishment follows any of the 5 proscribed serious driving offenses identified above, that our legislature has made into felony vehicular homicide crimes.
Constitutional challenges have been made to the legal issue of a judge ‘stacking” the prison time or jail sentence of persons causing more than one death, either by a second degree homicide by vehicle or first degree homicide by vehicle in Georgia. The case that ruled such sentencing was constitutional is Cox v State, 243 Ga. App. 668 (2000), where three deaths were caused by a DUI driver (Cox) and the judge — on a guilty plea — sentenced the drunk driver to 45 years (15 x 3), with the first 36 years in state prison and the balance on probation.
The court held that “even though done at the same time with one stroke of the same death-dealing instrument (a motor vehicle), while the stroke was one transaction, the killing of different persons with that stroke constitutes several criminal transactions.”
Georgia DUI laws allow conviction of driving under the influence multiple ways, including simply having an unlawful blood alcohol level 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 case that Atlanta DUI lawyer William C. Head appealed, after Mr. David’s lawyer convinced him to plead guilty to a case that should have gone to trial but did not].
The Georgia “Hit and Run” Statute Requires a Driver Involved in an Accident to Stop at the Scene and Identify Oneself
Where a single death occurred WITHOUT any direct impact between the vehicle of the deceased driver and the accused homicide by vehicle motorist, conviction for reckless driving and a hit and run can be sustained, and a jury verdict upheld an appeal. Eyewitness testimony and documentary proof of the identity of the person renting a car can support convictions of motor vehicle crimes, including reckless driving and leaving the scene of an accident, where the egregiously bad and dangerous driving of the accused driver were proven beyond a reasonable doubt.
While the convicted driver did not directly impact the other vehicle, recklessly cutting in front of the other vehicle and causing that car to veer off the road and strike trees is sufficient proof. The driver’s action of going to the rental car company to switch to another vehicle with a different tag was part of the proof of his knowledge for having caused the accident. Bell v. State, 293 Ga. 683 (2013).
A constitutional challenge based upon self-incrimination by being statutorily required to not leave the scene (OCGA 40-6-270) was rejected in the Bell case, because no confession is required, but merely to remain at the scene and provide identification.
Bell had been sentenced to 15 years in prison on felony homicide by vehicle by reckless driving, plus another 5 years to serve consecutively, for leaving the scene of this accident. Of the 20 total years, the trial judge required the first twelve (12) years to be served in prison.
When a person dies as a result of a homicide in Georgia, a guilty plea to the criminal charges can create civil liability for the wrongful death, and other related medical bills and funeral charges. In cases like this, your criminal defense attorney should guide you to a skilled personal injury attorney to help you avoid being responsible for a huge restitution bill that could take decades to pay off. Under Georgia law, OCGA 17-14-2 (2) covers the types of civil damages for a tort claim that can be ordered by the sentencing court.
However, no such order of restitution can be made if the responsible party had previously settled and obtained a written release, or can prove that the pending civil case was dismissed with prejudice after a settlement was paid. Taylor v State, 295 Ga. App. 689 (2009).
Felony vs. Misdemeanor – Georgia Feticide by Vehicle – Death of an Unborn Child – Vehicular Feticide – Only Two Serious Traffic Offenses as Predicate Offenses, Not Five
Since 1991, Georgia has had an additional felony law relating to causing the death of an unborn baby by causing injury to the mother by either committing reckless driving under OCGA 40-6-390, or DUI under 40-6-391. This felony statute limits the underlying serious driving offenses that pertain to felony homicide by vehicle cases. Although George once defined “feticide” as being at a certain stage of viability (to live on its own, outside the womb), the law was amended to now make the determination as being “at any stage of development”. This code section is OCGA 40-6-393.1
Like with homicide by vehicle, a 2nd degree feticide caused by any other driving offense except reckless driving and DUI will be accused as misdemeanors. This includes the other 3 omitted, underlying serious offenses of hit and run, attempting to elude, and passing a stopped school bus.
Similar to the Vehicular Feticide law set forth above, the felony, Serious Injury by Vehicle in GA, only applies to reckless driving or DUI. Unlike vehicular homicide or feticide by vehicle, no corresponding law exists for other misdemeanor traffic violations that lead to serious injuries. Thus, simply running a red light, or not fully stopping before going through a stop sign or following too closely — unless rising to the level of reckless driving — will not trigger a serious bodily injury case in Georgia. So far, the Georgia legislature has not expanded the serious injury be vehicle statute. This code section is OCGA 40-6-394.
Most people charged with any of these serious offenses are primarily concerned about prison time or jail time. The statutes pertaining to these serious motor vehicle offenses focus a minimum and maximum prison time for felony offenses, but leave the misdemeanor offenses on homicide by vehicle and Vehicular Feticide to the discretion of the judge, which is from 0 days to 12 months in the county jail.
Below is a chart showing minimum and maximum incarceration time for felony offenses in Georgia (per victim):
Code Section OCGA 40-6-393
Felony Vehicular Feticide
Felony Serious Injury by Vehicle
A DUI-Related Vehicular Homicide Conviction is Non-Dischargeable in Bankruptcy
Additionally, obtaining a civil settlement (if possible) is particularly critical in DUI-related, feticide, or serious bodily injury or death cases, since federal bankruptcy laws prohibit any civil damages or judgment from being discharged in a bankruptcy case. This means the amount owed can be collected indefinitely, against the responsible driver, who cannot file Chapter 7 bankruptcy.
Under II U.S.C.A. § 523 (a) (9), any debt “for death” or personal injury caused by the debtor’s operation was unlawful because the debtor was intoxicated from using alcohol, a drug, or another substance.
So, settling any vehicular homicide civil cases or serious injury by vehicle civil cases before the DUI criminal case goes to court can be a life-changing issue. In a previous section that focused on assuring that civil injury and death issues are being simultaneously addressed, the issue of restitution being ordered as part of the judges’ resolution of the criminal case can be a financial burden paralleling the pain of being put behind bars.
When You Are In Trouble, Our Criminal Lawyers Are Available to Talk
Vehicular homicide lawyer William C. “Bubba” Head is a criminal defense attorney with 40 years of criminal litigation experience. During those 40 years Mr. Head has handled over 125 felony vehicular homicide and serious injury criminal cases for clients facing decades of potential prison time for their respective criminal charges. Call our criminal attorneys NOW, day or night. 404-567-5515, or toll free at 1-888-384-4323.
The Atlanta attorney has traveled the State of Georgia defending felony cases, from Thomas County to Towns County, and dozens of other counties in between, for citizens charged with causing death or serious injury to others through accidents. The greatest number of deaths from one accident is three, plus another case with a vehicular homicide plus a vehicular feticide involved, and one serious injury case with 7 seriously injured victims.
Mr. Head has authored or co-authored over a dozen books on drunk driving and other serious traffic offenses, and is Board-Certified by the American Bar Association in DUI Defense (through NCDD.com). Best Lawyers in America, Martindale-Hubbell “av” preeminent, and Super Lawyers have recognized his expertise.
More than 22 years ago, the DUI lawyer started the National College for DUI Defense, and launched national DUI lawyer training for beating field sobriety test evidence and neutralizing breath alcohol test evidence, either through implied consent challenges, suppression motions or at trial. An expert on GA DUI laws, Mr. Head also has handled over 200 appeals of criminal and civil cases.
Mr. Head’s DUI law firm has two other partners that also handle as many or more vehicular homicide felony and misdemeanor offenses as Mr. Head, and both partners have been with Mr. Head since law school.
Serious injury lawyer Larry Kohn and ex-cop-turned-attorney Cory Yager are currently fighting multiple high profile serious injury and homicide by vehicle cases, and are willing to provide you with an in-depth, professional case assessment. Each Partner brings his own skills and training to defending criminal cases, whether misdemeanor or felony.
List of States and abbreviations to use as a guide to the state abbreviations in this article:
Call 42-year veteran Atlanta DUI attorney Bubba Head today and get honest answers to all your questions. Tell us everything that happened and everything you remember about your DUI arrest. The sooner you call us, the better chance we have to win your DUI case and get your charges reduced or dismissed.
Remember, you only have 30 DAYS to file a license suspension appeal or apply for an ignition interlock device, or your driver’s license will be suspended for up to one year! Talk to Bubba Head, Larry Kohn, or Cory Yager now. We are available 24 hours a day, weekends, and all major holidays. (404) 567-5515