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Motor Vehicle Homicide, Leaving the Scene and Other Motor Vehicle Offenses

Motor Vehicle Homicide, Leaving the Scene and Other Vehicle Crime.

Vehicle crimes - the great equalizer.

Although it may be a small world, you cannot get around in it without a car.  Almost every one of us is behind the wheel of a car at some point in the day.  We drive without incident until, in the blink of an eye, everything changes.  Motor vehicle crimes are the great equalizer because nobody plans them and they can happen to anyone.  

motor vehicle homicide

Most driving crimes involve no intentional conduct  at all; purely accidental or unintentional conduct can often result in charges; a brief moment of distraction is sometimes all that it takes for tragic consequences to occur and serious charges to follow.  

Apart from DWI/DUI/OUI, which is discussed in separate pages here (overview) and here (frequently asked questions) and license suspensions (for fraud or otherwise), discussed here, some of the more common motor vehicle offenses include motor vehicle homicide, leaving the scene of an accident, driving to endanger, and use without authority. 

Motor vehicle homicide and manslaughter.

When we get behind the wheel, the greatest fear we all share is getting into a fatal accident.  When I was a prosecutor, I found motor vehicle homicide charges to be some of the most upsetting.  That is because fatal car accidents are a tragedy for all those involved. For the loved ones of the deceased the loss can be unbearable.  For the accused, contending not only with the emotional implications of such a devastating incident. while simultaneously facing serious criminal charges, the incident is overwhelming.  The problem with these cases is that, at their core, they are accidents. It is difficult to see how anything is made better by the criminal case that follows, regardless of the outcome.  

The potential charges and penalties.

Note that whenever there is a fatal accident, the RMV is required to suspend the other operator's license pending investigation of the cause of the accident.  For more information on this type of suspension, click here

There are several different charges that may be brought in the aftermath of a fatal accident. 

Vehicular Manslaughter. Massachusetts general law chapter 265, § 13 1/2 provides that a person who commits "manslaughter" while impaired by drugs or alcohol shall be punished by up to 20 years in state prison, with a minimum sentence of 5 years.  This statute carries a license loss ranging from 15 years to life.

"Common law" manslaughter. A fatal accident can be charged as involuntary manslaughter, which is punishable by 20 years in the state prison or 2.5 years in the county jail. (G.L. ch. 265, § 13).  There is no license loss provided in this section.

Vehicular Homicide. Massachusetts general law chapter 90, § 24G contains varying penalties depending on the facts of the case:

  • Motor vehicle homicide while driving negligently / recklessly AND impaired by drugs or alcohol (G.L. c. 90, § 24G(a)) carries a maximum penalty of 15 years in state prison, with a minimum sentence of either 2.5 years in state prison or 1 year in the county jail.
  • Motor vehicle homicide while driving negligently OR impaired by drugs or alcohol (G.L. c. 90, § 24G(b)) carries a maximum penalty of 2.5 years in the county jail with a minimum sentence of 30 days.
  • Motor vehicle homicide while driving recklessly (G.L. c. 90, § 24G(c)) carries a maximum penalty of 2.5 years in the county jail or 5 years in the state prison.

All branches of the motor vehicle homicide statute carry a mandatory 15 year loss of license for a first offense.  Subsequent offenses carry a lifetime license loss.

Manslaughter versus motor vehicle homicide. 

Almost every one of us is behind the wheel of a car at some point in the day.  We drive without incident until, in the blink of an eye, everything changes.  Motor vehicle crimes are the great equalizer

Although there is a substantial amount of overlap and the lines are less than clear, manslaughter charges (whether vehicular manslaughter or involuntary manslaughter) require proof that the driver engaged in "wanton or reckless conduct,"  which requires proof of “intentional conduct [involving] a high degree of likelihood that substantial harm will result to another, and something “more than a mistake of judgment or even gross negligence.” Something like playing "chicken" or driving after being told you were too drunk may qualify for this higher standard.  

Motor vehicle homicide (as opposed to manslaughter) requires either ordinary negligence or recklessness.  Negligence arises when a driver "fails to use due care," or "acts in a way that a reasonable person would not act." Recklessness occurs when the "manner of driving is very likely to result in death or serious injury to someone, or he is indifferent to whether someone is killed or seriously injured."

If you looked at these definitions and were unable to discern the difference between manslaughter and reckless homicide, you would not be alone.  The operative language is murky, leaving the individual charging decision (and resulting penalties) subject to the whim of the prosecutor, rather than any meaningful difference in degree of wrongdoing.  

Who is to blame?

Whenever a car accident involves a fatality, there is a heavy tendency to assume that the surviving driver is at fault.  Police and prosecutors are under a tremendous amount of pressure to respond with criminal charges.  Oftentimes, even in the absence of clear negligence or wrongful conduct, the government errs on the side of filing charges.  

When one party is alive and the other is dead, it is very easy to shift the blame to the surviving party, regardless of the facts.  But it is wrong to compound the tragedy of a terrible accident by calling the other driver a criminal just because he was lucky enough to survive.  At my office, we will help the court see that most often, an accident is just an accident.  

In all but the clearest cases, it is quite difficult to accurately pin down the events which led up to a vehicle fatality.  The upsetting spectacle of a fatal accident renders eyewitness testimony particularly unreliable.  The extreme shock and horror which accompany these terrible incidents greatly reduce our ability to accurately perceive and recall them. Bystanders at the scene may also subconsciously perceive the other driver to be at fault, flowing from a natural desire to not blame the deceased. Emergency medical personnel and police officers are not immune to this phenomena, often committing to a view of the facts which conforms to a narrative which may not accurately reflect what occurred. 

This is particularly troublesome in the case of police officers, whose formal reports will form the basis for charges that follow.  Police officers are hardwired to assume that wrongdoing is afoot.  They are prone to developing tunnel vision based on isolated facts, which leads them to exaggerate their significance while ignoring facts which may not support their theory.  If, for example, a police officer smells alcohol on the surviving driver's breath, he may decide that the accident was caused by drunk driving.  And while it is not illegal to drink alcohol and then drive, and alcohol may not have contributed to the accident, this observation may very well control the trajectory of the entire investigation, to the exclusion of other important factors such as road and visibility conditions, potential defects in the involved vehicles, and the driving conduct of nearby motorists.  Only an experienced attorney is able to bring all of the relevant facts to bear, sifting through what the officer might have missed as he viewed an incident through a lens clouded by assumptions and snap judgments. 

Accident reconstruction.

The prosecution of crash cases will almost always involve a vast amount of forensic and technical evidence.  Nearly all fatal accident scenes will involve some level of accident reconstruction analysis.  Accident reconstruction is a forensic discipline which relies on various scientific or technical assumptions which may be made by examination of the vehicles and evidence found at the scene.  For example, the presence of  skid or gouge marks may support conclusions regarding the speed of a vehicle at the time of impact or the distance at which brakes were first applied.  Most vehicles are also equipped with computers known as event data recorders (EDR's) which capture data like pre-crash dynamics and vehicle status, driver input or movements, a crash signature, and information on seatbelt / airbag deployment.  By drawing on evidence found at the scene, eye-witness accounts, and data sets provided by devices including EDR's, reconstruction experts will form opinions as to the cause of an accident and potential criminal liability.  

Jurors find the testimony of an accident reconstruction expert highly persuasive.  Because it purports to be based on objective scientific principles, the expert's testimony is ordinarily not vulnerable to the biases and errors of perception to which ordinary witness testimony is prone.  An accident reconstructionist who gives his expert opinion that you are to blame can be devastating and outcome determinative.  

But as with all other scientific disciplines, the science is only as good as the available data and the skill of the expert.  A

accident reconstruction via skid marks

slight miscalculation or misapplication of a particular formula may produce a wildly incorrect analysis of the cause of the accident.  These errors are not easily discernable and will escape the notice of all but the most experienced and meticulous attorney.  Though the expert's testimony may well be flawed, the existence of those flaws will be of little consolation when the defense attorney knows neither how to identify nor exploit them.

At our office, we have developed proven strategies to highlight the mistakes the prosecutor's expert will invariably make.  

My office's experience in discrediting government experts, when combined with the testimony of our credible experts, will be difficult for the government to overcome.

As a former prosecutor, I worked hand in hand with accident reconstruction experts.  I always viewed their reports with a critical eye; I challenged each of the assumptions that the expert made to make sure that their conclusions were supported and valid.  As a defense lawyer, I draw upon that volume of experience to quickly identify the flaws in the expert's reasoning.  But I do not stop there.  Rather, in most instances, I will recommend that our clients engage the services of an independent accident reconstruction expert.  In this regard, we do not rely on hired guns who will offer whatever opinion they are paid to.  Rather, we engage the services of nationally renowned experts who are not only at the forefront of the discipline, but have likely taught classes which the government's witness attended.  Provided my office is retained early enough in the process, my expert will examine the accident scene, the involved vehicles, and any other pertinent data to identify the true cause of the accident.  He will compare his findings to that of the government and explain to the jury where the government's expert got it wrong.  My office's experience in discrediting government experts, when combined with the testimony of our credible experts, will be difficult for the government to overcome.  

Other important scientific issues that arise in motor vehicle homicide cases are in the area of toxicology and autopsies.  In cases of impaired operation, the government may seek to offer evidence that the accused was impaired by alcohol or drugs.  However, this testimony is often plagued by questionable investigative techniques.  In many cases, the government will rely upon testing of biological samples obtained at the hospital.  However, medical personnel are not trained in how to obtain and handle evidence.  Careful study may reveal that proper chain of custody is non-existent, such that the government is unable to reliably establish that a particular biological sample relates to our client.  The government may not even know who obtained the sample in the first place, and what he did with it after the fact.  In those instances, we may be able to petition the court to exclude this evidence entirely if the chain of custody is flawed or unreliable.  

Other areas of inquiry regarding impairment arise from the fact that the blood or breath sample is invariably drawn after the time of the accident. Because alcohol does not immediately enter the blood stream, and because it metabolizes over time, a person's blood alcohol content (BAC) at the time the sample is taken may not accurately reflect their BAC at the time of operation.  If the collection is not sufficiently close in time to the accident, the evidence will be of diminished value and may even be subject to exclusion.  For more information on BAC, see our drunk driving faq here.

Leaving the scene of an accident.

When motorists are involved in an accident, the law requires them to stop and identify themselves or report the accident to police.  Failure to do so can result in criminal charges.

The possible charges.

  • Leaving the scene of an accident involving property damage (G.L. c. 90, § 24(2)(a) is punishable by 2 weeks to 2 years in the county jail. 
  • Leaving the scene of an accident involving personal injury (G.L. c. 90, § 24(2)(a½)(1)) is punishable by 6 months to 2 years in the county jail. 
  • Leaving the scene of an accident involving death (G.L. c. 90, § 24(2)(a½)(2)) is punishable by 2.5 to 10 years in the state 1 to 2.5 years in the county jail.

In general, this statutory framework is designed to make sure that people who cause accidents are identified so that they will be held responsible for the harm they have caused.  However, police routinely misapply this law in several ways.

The law misapplied.

First, police must establish that the accused driver caused damage in an accident.  This means that not every type of contact triggers a responsibility to identify oneself.  Yet, police will sometimes press charges when, for example, a driver backs into the bumper of another car, with no perceptible damage.  Absent evidence of damage, this criminal charge is improper.  Similarly, without clear evidence that the accused driver is actually at fault in the accident, this criminal charge is invalid.  

Second, police misunderstand the concept of "leaving."  Not everyone leaves the scene of an accident because they seek to escape responsibility.  In a large number of cases, people technically "leave" the scene for safety or other valid reasons.  For example, the accident may occur in an area that is unlit or known for criminal activity.  The car may also be positioned in such a way that creates a risk of further accidents.  Moving to a safe area is perfectly valid and reasonable in those circumstances and doing so should not be treated as a crime.  In other cases, the actions of the other driver may be aggressive or frightening.  In those instances, a driver cannot be forced to remain at the scene where they may very well be at risk of physical harm.  Finally, there are some instances where the other driver flees the scene of the accident, and the other driver leaves the scene in order to pursue and identify them.  In all of these instances, the driver has technically "left" the scene, but they lacked criminal intent in doing so.  If you are accused of leaving the scene in similar circumstances, we will help the court understand that your doing so did not constitute a crime.

police misunderstand the concept of "leaving."  Not everyone leaves the scene of an accident because they seek to escape responsibility.

Finally, in a surprising number of cases, police will simply charge the registered owner of a vehicle, even in the absence of any affirmative evidence that the owner was driving.  This is yet another unfair application of the law.  It is not a crime to own a car that was involved in an accident.  Rather, it is only a crime to leave the scene of an accident.  It is not up to you to prove who was driving your car, or clear your name if your were not.  Instead, it is the government's job to prove beyond a reasonable doubt that you were the driver at the time of the accident; assumptions based on vehicle ownership fall short of that proof.  

A note on citations and clerk's hearings.

The Massachusetts "no-fix" law requires police to provide a written citation at the time and place of the accident, with certain exceptions.  If police fail to timely file a citation, this may constitute a complete defense to the criminal charge.  We have secured dismissal of many cases where police have failed to comply with this statute.  For more information on the no-fix law, click here.

Unless the accident was fatal, leaving the scene charges are misdemeanors, to which the accused is ordinarily entitled to a clerk's hearing.  If police fail to request a clerk's hearing, this can result in dismissal of your charges.  For an in-depth discussion of clerk's hearings, click here.

Operating to endanger.

Driving to endanger is a misdemeanor in Massachusetts punishable pursuant to general law chapter 90, § 24(2)(a) as follows:

  • 2 years in jail
  • $200 fine
  • License loss from 60 days to 1 year.
operating to endanger

Police may choose to file this charge against you in various contexts.  If you are involved in an accident, are seen driving erratically, or even driving too fast, police may choose to charge you with this crime in addition to any number of civil driving infractions.  This charge can have a major impact on your life in the form of potential incarceration, loss of driving privileges, and an increase in insurance premiums.  We can help you minimize these consequences and, in most cases, avoid them altogether.  

This charge is a misdemeanor, and is subject to the Massachusetts no-fix law, discussed here.  You are also entitled to a clerk's hearing in most instances.  Click here to see our in-depth discussion about clerk's hearings in Massachusetts.  If police fail to follow these protective laws, we may be able to get your case dismissed.

Unauthorized use of a motor vehicle.

Under Massachusetts law (G.L. c. 90, § 24(2)(a)), a person who drives a car without the owner's permission may be charged with a misdemeanor carrying the following penalty:

  • 2 years in the county jail
  • $500 fine
  • License loss between 1 and 3 years

This criminal charge is different from motor vehicle theft in the sense that there is no intent to steal (or in legal terms, permanently deprive).  That is why this offense is commonly referred to as "joyriding." 

Whatever you call it, this is a serious offense that can have profound implications on your future.  Despite the serious consequences that follow, police routinely file this charge without a proper basis in law or facts.

When people are behind the wheel of a car that they do not own, they are rarely breaking the law in dong so.  Nevertheless, they may find themselves wrongfully accused of this crime.  For instance, it is not unusual that domestic partners have a disagreement, where one party gets in a car and drives away.  The other party may call the police, claiming their partner took the car without permission.  While the allegation may arise from hurt feelings rather than facts, police will often act on those accusations to make an arrest without conducting any real investigation.  Yet when cooler heads prevail, the criminal process has already begun, and is difficult to stop.  Another examples of this law misapplied is when a person is driving a rental car, but is not listed as the authorized driver.  Police will invariably assume that the rental contract controls who may drive a car.  While that may well be true as to the rights between the lessee and the rental company, it has no bearing on the application of the statute.  It is simply wrong to charge the driver of a rental car with a crime simply because they are not listed on the rental agreement.  

Whatever the circumstances that give rise to the charge, it is the government's job to prove that you are guilty.  In order to do so, they must prove that you did not have permission to drive the car, usually with testimony to that effect by the true owner of the vehicle.  Our team has the experience it takes to secure dismissal or acquittal of these charges in the vast majority of cases.

This charge is a misdemeanor, and is subject to the Massachusetts no-fix law, discussed here.  You are also entitled to a clerk's hearing in most instances.  Click here to see our in-depth discussion about clerk's hearings in Massachusetts.  If police fail to follow these protective laws, we may be able to get your case dismissed. 

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