Drunk driver Vs Pedestrian

[RLE1113]

I’m in therapy you XXXX [foul language removed]. And I am not the one grieving as a matter of fact I don’t even like my sister. What I am trying to do is get justice for her 3 children who were left orphaned, cause they lost there dad to cancer in July. My 6 yo niece was raped and molested in foster care. My 1 yo niece will never know her mother. And my 11 year old niece had to be hospitalized for attempted suicide because a women chose to get behind the wheel of her car drunk!!

 

[Taxing Matters]

Florida.
Can someone give me the actual law or point me in the direction I need to start in

The crime of manslaughter is the following:

782.07 (1) The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.​

This is a difficult crime to prosecute in a traffic accident situation. Indeed, my quick review of the case shows that most of the notable appellate cases in manslaughter charges out of a traffic accident are from the 1960s and early 1970s. That suggests that prosecutors have not gone that route much since then. Note that simply proving that the driver was intoxicated and speeding would not be enough on its own to make manslaughter case:

Section 782.07(1), Florida Statutes (2001), proscribes the “killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification.” Culpable negligence “involves a state of mind so wanton or reckless that the behavior it produces may be regarded as intentional.” Bowen v. State, 791 So.2d 44, 61 (Fla. 2d DCA 2001). It requires a showing of “negligence of such a gross and flagrant character that it evinces a reckless disregard for human life.” Id. at 61-62. Evidence of excessive speed coupled with intoxication is not sufficient to meet this standard, without more. See Filmon v. State, 336 So.2d 586 (Fla.1976); Davison v. State, 688 So.2d 338 (Fla. 1st DCA 1996).​

Sexton v. State, 898 So. 2d 1187, 1188 (Fla. Dist. Ct. App. 2005)(bolding added).

You didn't mention any speeding, just intoxication of some unknown amount of opiates and alcohol of .09 BAC, just over the presumed level of intoxication of .08. That alone is not enough. The state has to prove more to get manslaughter.

The state of Florida has a specific crime to deal with death caused in a motor vehicle accident, and that is one that in recent decades has been the more commonly charged offense. The crime of vehicular homicide in Florida is the following :

782.071 Vehicular homicide.—“Vehicular homicide” is the killing of a human being, or the killing of an unborn child by any injury to the mother, caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another.​

​

Vehicular homicide is a statute that covers the gap between regular manslaughter and other traffic offenses (like DUI). In other words, it is an easier statute under which to prosecute than manslaughter. In describing the difference, the Florida Supreme Court said that:

Manslaughter is the killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification. s 782.07, Fla.Stat. (1975). We have repeatedly said that the culpable conduct necessary to sustain proof of manslaughter under section 782.07 must be of A gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that Entire want of care which would raise the presumption of a Conscious indifference to consequences, or which shows Wantonness or recklessness, or a Grossly careless disregard of the safety and welfare of the public, or that Reckless indifference to the rights of others which is equivalent to an intentional violation of them. Filmon v. State, 336 So.2d 586 (Fla.1976); Miller v. State, 75 So.2d 312 (Fla.1954); Preston v. State, 56 So.2d 543 (Fla.1952).​

Section 782.071 provides:​

“Vehicular homicide” is the killing of a human being by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another. Vehicular homicide is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.​

​

The legislature did not intend the word “reckless” used in the vehicular homicide statute to mean the same thing as the word “culpable” used in the manslaughter statute. Had the legislature intended that vehicular homicide and manslaughter be the same offense with the same standard of proof and only that there be a reduced penalty for the former, then it simply could have provided that vehicular homicide is the killing of a human being by the operation of a motor vehicle in a culpably negligent manner.​

Certainly, it is within the authority of the legislature to make punishable as a third-degree felony reckless driving which results in the killing of a human being where the degree of negligence falls short of culpable negligence but where the degree of negligence is more than a mere failure to use ordinary care.​

McCreary v. State, 371 So. 2d 1024, 1026 (Fla. 1979).

In interpreting the vehicular homicide statute, the Florida courts state the following:

“Vehicular homicide cannot be proven without also proving the elements of reckless driving, which requires proof of a ‘willful or wanton disregard for the safety of persons or property.’ ” Santisteban v. State, 72 So.3d 187, 195 (Fla. 4th DCA 2011) (citations omitted). “In determining whether a defendant was driving recklessly, the essential inquiry is whether the defendant knowingly drove the vehicle in such a manner and under such conditions as was likely to cause death or great bodily harm.” Id. (citing D.E., 904 So.2d at 562).​

Rubinger v. State, 98 So. 3d 659, 662 (Fla. Dist. Ct. App. 2012). But while easier to prove, it is still the case in vehicular manslaughter case that "Evidence of excessive speed coupled with intoxication is not sufficient to meet this standard, without more." Sexton v. State, 898 So. 2d 1187, 1188 (Fla. Dist. Ct. App. 2005). The state still has to show that the actual operation of the vehicle was reckless.

Certainly how easily the driver could have seen the pedestrian is relevant to that inquiry. In at least some circumstances a pedestrian that was difficult to see because of dark clothing might have been struck by someone who was using due care or was just ordinarily negligent. Ordinary negligence is not enough to be guilty of vehicular homicide. So, aside from the fact that the driver was a bit intoxicated, are there any other facts to show that the driver was acting recklessly? Is there some to show here that more than mere negligence was involved? If not, that would explain why the prosecutor is declining to prosecute either manslaughter or vehicluar homicide. The prosecutor has to believe he or she can convince a jury that the defendant's action were reckless, not just that the driver was intoxicated. The latter is a DUI offense.

In any event, you cannot force the prosecutor to file the charges you would like to see. It is up to the prosecutor what charges to file, and the prosecutor is going to pursue the case that he or she thinks has a reasonable shot to win.

 

[Taxing Matters]

I’m in therapy you XXXX [foul language removed]

That reply is not appropriate. No one was attacking you or was rude to you. If you didn't like the suggestion made, then feel free to discard it and ignore it. But attacking other people on this forum with rude, insulting, and obscene language is not acceptable.

 

[RLE1113]

The crime of manslaughter is the following:

782.07 (1) The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.​

This is a difficult crime to prosecute in a traffic accident situation. Indeed, my quick review of the case shows that most of the notable appellate cases in manslaughter charges out of a traffic accident are from the 1960s and early 1970s. That suggests that prosecutors have not gone that route much since then. Note that simply proving that the driver was intoxicated and speeding would not be enough on its own to make manslaughter case:

Section 782.07(1), Florida Statutes (2001), proscribes the “killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification.” Culpable negligence “involves a state of mind so wanton or reckless that the behavior it produces may be regarded as intentional.” Bowen v. State, 791 So.2d 44, 61 (Fla. 2d DCA 2001). It requires a showing of “negligence of such a gross and flagrant character that it evinces a reckless disregard for human life.” Id. at 61-62. Evidence of excessive speed coupled with intoxication is not sufficient to meet this standard, without more. See Filmon v. State, 336 So.2d 586 (Fla.1976); Davison v. State, 688 So.2d 338 (Fla. 1st DCA 1996).​

Sexton v. State, 898 So. 2d 1187, 1188 (Fla. Dist. Ct. App. 2005)(bolding added).

You didn't mention any speeding, just intoxication of some unknown amount of opiates and alcohol of .09 BAC, just over the presumed level of intoxication of .08. That alone is not enough. The state has to prove more to get manslaughter.

The state of Florida has a specific crime to deal with death caused in a motor vehicle accident, and that is one that in recent decades has been the more commonly charged offense. The crime of vehicular homicide in Florida is the following :

782.071 Vehicular homicide.—“Vehicular homicide” is the killing of a human being, or the killing of an unborn child by any injury to the mother, caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another.​

​

Vehicular homicide is a statute that covers the gap between regular manslaughter and other traffic offenses (like DUI). In other words, it is an easier statute under which to prosecute than manslaughter. In describing the difference, the Florida Supreme Court said that:

Manslaughter is the killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification. s 782.07, Fla.Stat. (1975). We have repeatedly said that the culpable conduct necessary to sustain proof of manslaughter under section 782.07 must be of A gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that Entire want of care which would raise the presumption of a Conscious indifference to consequences, or which shows Wantonness or recklessness, or a Grossly careless disregard of the safety and welfare of the public, or that Reckless indifference to the rights of others which is equivalent to an intentional violation of them. Filmon v. State, 336 So.2d 586 (Fla.1976); Miller v. State, 75 So.2d 312 (Fla.1954); Preston v. State, 56 So.2d 543 (Fla.1952).​

Section 782.071 provides:​

​

“Vehicular homicide” is the killing of a human being by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another. Vehicular homicide is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.​

​

The legislature did not intend the word “reckless” used in the vehicular homicide statute to mean the same thing as the word “culpable” used in the manslaughter statute. Had the legislature intended that vehicular homicide and manslaughter be the same offense with the same standard of proof and only that there be a reduced penalty for the former, then it simply could have provided that vehicular homicide is the killing of a human being by the operation of a motor vehicle in a culpably negligent manner.​

Certainly, it is within the authority of the legislature to make punishable as a third-degree felony reckless driving which results in the killing of a human being where the degree of negligence falls short of culpable negligence but where the degree of negligence is more than a mere failure to use ordinary care.​

McCreary v. State, 371 So. 2d 1024, 1026 (Fla. 1979).

In interpreting the vehicular homicide statute, the Florida courts state the following:

“Vehicular homicide cannot be proven without also proving the elements of reckless driving, which requires proof of a ‘willful or wanton disregard for the safety of persons or property.’ ” Santisteban v. State, 72 So.3d 187, 195 (Fla. 4th DCA 2011) (citations omitted). “In determining whether a defendant was driving recklessly, the essential inquiry is whether the defendant knowingly drove the vehicle in such a manner and under such conditions as was likely to cause death or great bodily harm.” Id. (citing D.E., 904 So.2d at 562).​

Rubinger v. State, 98 So. 3d 659, 662 (Fla. Dist. Ct. App. 2012). But while easier to prove, it is still the case in vehicular manslaughter case that "Evidence of excessive speed coupled with intoxication is not sufficient to meet this standard, without more." Sexton v. State, 898 So. 2d 1187, 1188 (Fla. Dist. Ct. App. 2005). The state still has to show that the actual operation of the vehicle was reckless.

Certainly how easily the driver could have seen the pedestrian is relevant to that inquiry. In at least some circumstances a pedestrian that was difficult to see because of dark clothing might have been struck by someone who was using due care or was just ordinarily negligent. Ordinary negligence is not enough to be guilty of vehicular homicide. So, aside from the fact that the driver was a bit intoxicated, are there any other facts to show that the driver was acting recklessly? Is there some to show here that more than mere negligence was involved? If not, that would explain why the prosecutor is declining to prosecute either manslaughter or vehicluar homicide. The prosecutor has to believe he or she can convince a jury that the defendant's action were reckless, not just that the driver was intoxicated. The latter is a DUI offense.

In any event, you cannot force the prosecutor to file the charges you would like to see. It is up to the prosecutor what charges to file, and the prosecutor is going to pursue the case that he or she thinks has a reasonable shot to win.

Thank you this is what I was looking for. The police report stated manslaughter so that’s what I looked at. I never looked for vehicular homicide. But I needed status numbers for when i write letters

 

[Zigner]

In addition to the personal reasons for therapy (which are extremely important), there are legal reasons that will help bolster the civil case. Again, your attorney will help make these things clear.

 

[RLE1113]

That reply is not appropriate. No one was attacking you or was rude to you. If you didn't like the suggestion made, then feel free to discard it and ignore it. But attacking other people on this forum with rude, insulting, and obscene language is not acceptable.

Neither is telling me to seek therapy. He had no advice, no help, no business being on my post

 

[Zigner]

He wasn’t giving me advice. He was being condicending. And like I said to him. If you have advice I’d love to hear it reguarding laws and statute numbers. If you want to discuss matters that have nothing to do with that scroll on

There was nothing condescending in my posts. I truly believe that a tragedy such as this is devastating for a family. Therapy is essential for the health and well being of all involved.

 

[Just Blue]

He wasn’t giving me advice. He was being condicending. And like I said to him. If you have advice I’d love to hear it reguarding laws and statute numbers. If you want to discuss matters that have nothing to do with that scroll on

From a LEGAL standpoint you are in desperate need of mental help.

 

[RLE1113]

There was nothing condescending in my posts. I truly believe that a tragedy such as this is devastating for a family. Therapy is essential for the health and well being of all involved.

Unless you have legal advise or law numbers, statutes or are a lawyer that wants to get involved in done speaking with you. This isn’t about my personal life. It is about having correct information requarding the law and that is it!