Alabama Act 2017 – 336: Does it Replace the Former Vehicular Homicide Statute?

By: Patrick Mahaney
Montgomery, Alabama

One of the few criminal/traffic code statutes that passed into an Act of Alabama this legislative session was Senate Bill 82 which was signed into law on May 19, 2017 as Act 2017 – 336 with an effective date of September 1, 2017. This Act adds (but does not replace or repeal) an additional criminal homicide statute to the Code of Alabama. The operative and essential terms of the Act are “knowingly engaged” which is substantially different from the prior Vehicular Homicide statute 32-5A-192 which used the words: “Whoever shall unlawfully and unintentionally cause the death … while engaged in the violation of any state law or municipal ordinance applying to the operation or use of a vehicle, or vessel, … shall be guilty of homicide when the violation is the proximate cause of the death.” (emphasis added) [Repealed eff. July 1, 2014.]

In Act 2017 – 336, the elements of the offense are stated: “Section 2. (a) A person who causes the death of another person while knowingly engaged in the violation of Title 32, Chapter 5A, excluding Section 32-5A-191, Code of Alabama 1975, applying to the operation or use of a vehicle, as defined in Section 32—1—1.1 (81) of the Code of Alabama 1975, may be guilty of homicide by vehicle or vessel when the violation is the proximate cause of the death. (b) A person convicted of homicide by vehicle under subsection (a) is guilty of a Class C felony.” (Emphasis added; note the specific exclusion of the state’s DUI statute, Code section 32-5A-191).

I was told some months ago that the Office of Prosecution Services wanted a statute to prosecute non-DUI fatality motor vehicle collisions that fell below the standard of “recklessness” but amounted to more than simple accidental conduct; somewhere in that grey area of the law known as criminal negligence. Act 2017-336 is the resultant effort that was enacted into law. What I fail to see is the utility of this section if the stated intent was the prosecution of substantially negligent conduct while operating a motor vehicle or vessel resulting in the unintended death of another person, but not amounting to deliberate conduct, nor amounting to reckless conduct. Code section 13A-2-2 defines “knowingly” as: “(2) KNOWINGLY. A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of that nature or that the circumstance exists.” As I understand the definition, “knowing” or “knowingly” means acting “deliberately” or with an almost certainty that such act will create a certain result. That is far different from being unaware, being careless, and acting negligently.

I don’t know who actually wrote this bill – the Legislative Reference Service (LRS) or the Office of Prosecution Services (OPS), the ‘front’ organization for the Alabama District Attorney’s Association. The bill’s sponsor was Sen. Pittman from Baldwin county, a small-town businessman and non-attorney member of the Senate, and who would be unlikely to have the legal training or legal education to understand the distinction in terms. I imagine Sen. Pittman was simply doing a favor for OPS to sponsor the bill and push it through.

“Knowingly engaged” as I understand the term means a conscious decision; a state of awareness that acting in X manner will produce Y result. If the D.A.’s Association intended this new statute to replace the prior 32-5A-192 which was basically the old common law ‘misdemeanor-manslaughter’ statute dressed up in modern terms, then the use of the words “knowingly engaged” seemingly places the burden of proof for the prosecution at a much higher quantum.

The former Vehicular Homicide statute [32-5A-192] was abolished at the specific request of the D.A.’s Association in 2014.This Act is, apparently, the replacement statute. I suspect the drafting of the bill – now an Act of Alabama waiting codification by the Code Commissioner – was to get around the Alabama Supreme Court’s decision in Ex parte Edwards, 816 So. 2d 98, 100 (Ala. 2001). I would have thought that in drafting a criminal statute that requires a specific culpable mental state, the D.A.’s Association would have used the definitions of liability that are already defined in the Criminal Code and not inject the new term “knowingly engaged” -previously unused to define a culpable mental state – to define the mens rea of the accused party. In all likelihood, however, the bill’s drafter, whether it was LRS or OPS, probably copied the language from some other state.

If the D.A.’s Association wanted a restoration of the misdemeanor manslaughter statute (which is now incorporated into Criminally Negligent Homicide, Code section 13A-6-4) specifically for motor vehicle and vessel homicides, albeit the new Act’s punishment is now classified as a Class C felony and not as a misdemeanor, then why use the words “knowingly engaged” which seemingly denotes a purposeful intent? As I understand the relationship of the proximate cause requirement between the act and the unintended death requires at a minimum the “but for” connection; what I am trying to grasp is why the D.A.’s Association would insert the words “knowingly engaged” when the great majority of traffic collisions – with or without injury resulting in death – are the result of unintentional human error – careless operation, negligent operation, even heedless operation, or simply not paying attention – but can hardly be held to the standard of “knowingly engaged” which, according to Black’s Law Dictionary, denotes the terms “purposeful” or “deliberate.”

The Alabama Criminal Code utilizes four distinct mental states which, since the Criminal Code’s inception in 1980, are well-recognized by the bench and the bar and now have hundreds or even thousands of decided cases with extensive opinions giving interpretation of each mental state and distinguishing the terms and the amount of evidence required; why employ a new standard which is heretofore unknown to Alabama law? I have never seen the words “knowing engaged” in an Alabama traffic code statute and I do not recall those terms used in defining a criminal statute either. The words “knowingly engaged” is a novel term that has no legal history in this state and is unfamiliar to the bench and the bar as a mental operative state.

In regard to Ex parte Edwards – and Ex parte Edwards is good case law today – the facts in that case were Ms. Edwards was upset and distraught over a sick child and was speeding and passing on a double yellow line while trying to get the child to a doctor when the collision occurred. Edward’s actions were certainly highly irresponsible vehicle operation, but was she “knowingly engaged” to such degree that Edwards knew or should have known the resultant collision would most likely occur? The paragraph below is taken directly from the Supreme Court’s published opinion (Champ Lyons, a highly respected jurist, wrote the Court’s opinion):

“On March 8, 1995, Edwards was rushing her six-month-old son, who had been sick for several days, to a doctor’s office. Earlier that day, Edwards had telephoned the baby’s doctor because of the child’s poor condition. At that time, she made an appointment for the baby to see the doctor. Edwards testified that her son’s condition worsened. She called the doctor again to explain his symptoms. The doctor told Edwards she should bring the baby to the doctor’s office as soon as possible. While in route to the doctor’s office, Edwards testified, the baby was making disturbing noises and his eyes rolled backward. She testified that she feared he was dead. Edwards drove faster than the speed limit. She attempted to pass a vehicle in front of her. In doing so, she crossed a double yellow line marking a no-passing zone. Her vehicle collided with an oncoming vehicle, and the driver of that other vehicle was killed. There was no alcohol or drug use involved in the accident.”

If the Court’s written synopsis is accurate, and there is no reason to doubt those facts, then there were at least two distinct traffic code offenses – speeding and passing on double yellow line. Taken together, that would certainly constitute “criminal negligence” as presently defined under the Criminal Code and maybe even rise to “recklessness” – depending on the speed of the vehicle involved and the location of the no passing zone – but at any rate, I don’t see how Edwards’ vehicle operation would ever equate to “knowing” or “knowingly” which is currently defined in the Criminal Code as the requisite mental state where a deliberate act is committed with an intended result. Hence, my confusion on why the D.A.’s Association would draft this bill, hand it off to a favorable sponsor, and think they had overcome the existent legal deficiency in former Vehicular Homicide statute.

Why this statute is drafted in such a way as to require actual knowledge instead of criminal negligence is unknown to me, since most drivers involved in a motor vehicle collision do not foresee the danger until the moment immediately before point of impact. Some years ago, the Supreme Court of Alabama distinguished the terms “criminal negligence” and “recklessness” in Ex parte Weems, 463 So. 2d 170 (Ala. 1984):

If the homicide is brought about by “criminal negligence,” the defendant is guilty of criminally negligent homicide. The essential difference between “recklessness,” as that term is used in the murder and manslaughter statutes, and “criminal negligence” is that a reckless defendant is one who has “consciously disregarded” a substantial and unjustifiable risk, whereas a negligent actor needs only to disregard a risk of which he “should have been aware.” Model Penal Code and Commentaries § 210.04, Comment 1

Negligence only requires lack of awareness which could be ascribed to substantial carelessness, heedless of the consequences, or in the words of the common phrase “should have known better”, but certainly fall below the Criminal Code standard of “knowingly” or “knowingly engaged” as used in the new statute, so it seems like a perfectly valid defense to say if your client is facing prosecution under the new Act: “I didn’t realize I was speeding” or “I didn’t see the stop sign” or “I thought it was safe to pass” …. any logical excuse will work and render the “knowingly engaged” standard as unproveable, or so it seems.