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July 6, 2014

Sentencing in Georgia Vehicular Homicide Cases

Filed under: Vehicular Homicide — Tags: , — Ben Sessions @ 11:18 am

Georgia Vehicular Homicide Sentencing

The felony provisions of Georgia’s “homicide by vehicle” or vehicular homicide statute, O.C.G.A. § 40-6-393(a), provide:

(a) Any person who, without malice aforethought, causes the death of another person through the violation of subsection (a) of Code Section 40-6-163 [improper passing of a school bus], Code Section 40-6-390 [reckless driving] or 40-6-391 [DUI], or subsection (a) of Code Section 40-6-395 [fleeing or attempting to elude a police officer] commits the offense of homicide by vehicle in the first degree and, upon conviction thereof, shall be punished by imprisonment for not less than three years nor more than 15 years.

(b) Any driver of a motor vehicle who, without malice aforethought, causes an accident which causes the death of another person and leaves the scene of the accident in violation of subsection (b) of Code Section 40-6-270 commits the offense of homicide by vehicle in the first degree and, upon conviction thereof, shall be punished by imprisonment for not less than three years nor more than 15 years.

(d) Any person who, after being declared a habitual violator as determined under Code Section 40-5-58 and while such person’s license is in revocation, causes the death of another person, without malice aforethought, by operation of a motor vehicle, commits the offense of homicide by vehicle in the first degree and, upon conviction thereof, shall be punished by imprisonment for not less than five years nor more than 20 years, and adjudication of guilt or imposition of such sentence for a person so convicted may be suspended, probated, deferred, or withheld but only after such person shall have served at least one year in the penitentiary.

There is a mistaken belief among many people that jail sentences are not truly imposed first offenders convicted of vehicular homicide.  The article except below shows just how misplaced this belief is:

Teen sentenced in drunk-driving death of 2

A Wyoming Park High School graduate will spend 30 months in prison for driving drunk, killing two of his classmates.

Takunda Mavima was sentenced Monday afternoon. He pleaded guilty in August to operating while intoxicated causing death, and operating while intoxicated causing injury.

On May 20, Mavima crashed a car carrying five other teenage passengers on the I-196 ramp to Chicago Drive.

Krysta Howell, 15; and Timothy See, 17, died in the accident. Dylan Stanaway, 16; Trenton Lambright, 18; and Huy Nguyen, 18, were injured in the crash. All were students at Wyoming Park High School.

On Monday, the sister and brother of Tim See urged Judge Jim Redford to impose no prison time for Mavima, saying it would do no good.

“I am begging you to let Takunda make something of himself in the real world,” said Lauren See. “Don’t send him to prison and get hard and bitter. That boy has learned his lesson a thousand times over and he’ll never make the same mistake again”

Angel Howell said her daughter’s death has motivated her to work to raise awareness about the dangers of drinking and driving.

Mavima’s sentence was on the very low end of state sentencing guidelines.

Predicting what factors drive the sentences in Georgia vehicular cases is very difficult, however.  The portion of the journal article provided below discusses some of the factors that impact jail sentences in vehicular homicide cases:

Below is the Georgia Parole Guidelines grid:

Georgia Vehicular Homicide Parole Grid

 

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Ben Sessions is an Atlanta DUI lawyer and partner in the firm of McIlhinney & Sessions. His practice is focused on the defense of clients charged with DUI and other drug and alcohol-related offenses. Ben has co-authored articles and participated in seminars before the National College for DUI Defense (NCDD), the Georgia Public Defender Standards Council, and other organizations. He is certified as both a Practitioner and Instructor of the National Highway Safety Traffic Safety’s Standardized Field Sobriety Testing procedures. He has received extensive training in forensic breath, blood, and urine testing. He is a member of the National College for DUI Defense, the National Association of Criminal Defense Lawyers, and the Georgia Association of Criminal Defense Lawyers. Ben Sessions graduated from the University of Georgia School of Law. In 2010 and 2011, he was named a “Rising Star” in the area of DUI defense by the Super Lawyers Magazine. In 2010, he was recognized for the “Greatest Trial Victory of the Year” by the Georgia Defense of Drinking Drivers (DODD) Group. In 2011, Ben was recognized as the “DUI Lawyer of the Year” by DODD.  Ben was selected by the Atlanta Municipal Court to participate in the 2011 DUI Court Advisory Committee.  Ben has also been selected as a speaker for the Atlanta Municipal Court “C=C” program.

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Transfer Hearings in Juvenile DUI-Vehicular Homicide Cases

Filed under: Vehicular Homicide — Tags: , — Ben Sessions @ 6:13 am

I recently handled a transfer hearing for a case involving a juvenile charged with, among other things, DUI vehicular homicide. The district attorney sought to transfer the case from juvenile court to superior court, and we contested that motion. Many friends and colleagues asked me about these hearings generally proceed and, in particular, how we prepared for the hearing involving a Georgia DUI-vehicular homicide charge. Below are a few of the issues that I believe are most important:

  • Know your state’s case law regarding the types of cases that are typically transferred. I think that one of the most compelling arguments against transferring a juvenile to superior court in a DUI vehicular homicide case is the lack of specific intent associated with this crime. Consider the appellate cases addressing whether a transfer is appropriate. In Georgia, there is not a single reported case that I am aware in which a case was transferred from juvenile court to superior court that involved a crime of general intent. How can the state show a pattern of activity in committing a general intent crime such that the juvenile is incapable of being adequately treated by the juvenile court?
  • Prepare for your child’s school history. A vehicular homicide charge is, for the most part, a random act. As one witness in a recent transfer hearing testified, it could be any of us. The child certainly did not intend to commit the act alleged. Nonetheless, the state will introduce even instance of poor behavior from the child’s school records to show a “pattern” of misbehavior and disobedience.
  • Have the child evaluated by a substance abuse counselor. Plan on the state eliciting testimony from some of the child’s teachers about petty child behavioral issues in an effort to show that the child has repeatedly disregarded adult supervision. Rebut this with a professional who can establish that the child does not have a substance abuse problem, and any concerns regarding future problems can be addressed through the supervision programs provided by the Department of Juvenile Justice or your state’s equivalent agency.
  • Know your local department’s limitations for oversight and treatment of juveniles.
  • Be prepared to argue against the child “aging out” of the juvenile system. The state will argue that the child cannot be adequately treated by the juvenile system because of the closeness to adulthood.

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Ben Sessions is a DUI lawyer and partner in the firm of McIlhinney & Sessions. His practice is focused on the defense of clients charged with DUI and other drug and alcohol-related offenses. Ben has co-authored articles and participated in seminars before the National College for DUI Defense (NCDD), the Georgia Public Defender Standards Council, and other organizations. He is certified as both a Practitioner and Instructor of the National Highway Safety Traffic Safety’s Standardized Field Sobriety Testing procedures. He has received extensive training in forensic breath, blood, and urine testing. He is a member of the National College for DUI Defense, the National Association of Criminal Defense Lawyers, and the Georgia Association of Criminal Defense Lawyers. Ben Sessions graduated from the University of Georgia School of Law. In 2010 and 2011, he was named a “Rising Star” in the area of DUI defense by the Super Lawyers Magazine. In 2010, he was recognized for the “Greatest Trial Victory of the Year” by the Georgia Defense of Drinking Drivers (DODD) Group. In 2011, Ben was recognized as the “DUI Lawyer of the Year by DODD.

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July 5, 2014

Had a Prior DUI Reduced? Yes, It Can Have a Real Affect on Your Case

A very recent vehicular homicide case in Atlanta illustrates the significance that even a DUI reduced “reckless driving” can have upon a defendant. Darrin Murphy has been charged with DUI- Vehicular Homicide in connection with an accident that resulted in the tragic death of Liam Rattray. In his first appearance before a Fulton County Magistrate Court Judge, Mr. Murphy was denied a bond. Part of the basis for the Court’s decision to deny bond in this case was a prior DUI charge that had been reduced to reckless.

While many defendants believe that a prior DUI that was dismissed in exchange for a plea to reckless driving will have no future impact upon them, this case illustrates just how wrong that assumption is. Even a reckless driving conviction can have very serious ramifications in a subsequent DUI case in Georgia.

The Fox 5 report on this hearing stated:

During his first appearance in court on Wednesday, the magistrate judge said that Murphy was arrested for DUI in Atlanta in 2009. He recently pleaded guilty to reckless driving in that case.

Authorities say Murphy lives in Buckhead, and he is a manager at FedEx in international corporation sales. They say he manages a team of about 10 people.

Murphy is charged with DUI, following too closely, and homicide by vehicle in the first degree. He is being held without bond pending another hearing in front of a superior court judge.

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Ben Sessions is an Atlanta DUI lawyer and partner in the firm of McIlhinney & Sessions. His practice is focused on the defense of clients charged with DUI and other drug and alcohol-related offenses. Ben has co-authored articles and participated in seminars before the National College for DUI Defense (NCDD), the Georgia Public Defender Standards Council, and other organizations. He is certified as both a Practitioner and Instructor of the National Highway Safety Traffic Safety’s Standardized Field Sobriety Testing procedures. He has received extensive training in forensic breath, blood, and urine testing. He is a member of the National College for DUI Defense, the National Association of Criminal Defense Lawyers, and the Georgia Association of Criminal Defense Lawyers. Ben Sessions graduated from the University of Georgia School of Law. In 2010 and 2011, he was named a “Rising Star” in the area of DUI defense by the Super Lawyers Magazine, and he was recognized for the “Greatest Trial Victory of the Year” by the Georgia Defense of Drinking Drivers Group.

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July 3, 2014

“Reckless Driving” in Georgia Vehicular Homicide and Serious Injury Cases

What constitutes reckless driving in Georgia vehicular homicide and serious injury by vehicle cases is hotly contested (and misconstrued) in these cases.  Dunagan v. State, 283 Ga. 501, 661 S.E.2d 525 (2008), provides helpful instruction as to what level and type of evidence is required to establish recklessness:

As Dunagan correctly argues, criminal negligence may support the offense of reckless driving, and it is more than the negligence that might render one liable for damages in a civil suit; it is recklessness or carelessness so as to show a disregard of consequences or a heedless indifference for the safety and rights of others who might reasonably be expected to be injured thereby. Walden v. State, 273 Ga.App. 707, 710-711(1), 616 S.E.2d 462 (2005). Even the found violation of a highway safety statute, such as running a red light as in this case, may not constitute criminal negligence, unless the violation is intentional, wilful, or wanton, or though unintentional, is accompanied by recklessness or is under circumstances from which probable death or injury to others might be reasonably anticipated. Id. at 711(1), 616 S.E.2d 462.

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Ben Sessions is a DUI lawyer and partner in the firm of McIlhinney & Sessions. His practice is focused on the defense of clients charged with DUI and other drug and alcohol-related offenses. Ben has co-authored articles and participated in seminars before the National College for DUI Defense (NCDD), the Georgia Public Defender Standards Council, and other organizations. He is certified as both a Practitioner and Instructor of the National Highway Safety Traffic Safety’s Standardized Field Sobriety Testing procedures. He has received extensive training in forensic breath, blood, and urine testing. He is a member of the National College for DUI Defense, the National Association of Criminal Defense Lawyers, and the Georgia Association of Criminal Defense Lawyers. Ben Sessions graduated from the University of Georgia School of Law. In 2010 and 2011, he was named a “Rising Star” in the area of DUI defense by the Super Lawyers Magazine. In 2010, he was recognized for the “Greatest Trial Victory of the Year” by the Georgia Defense of Drinking Drivers (DODD) Group. In 2011, Ben was recognized as the “DUI Lawyer of the Year” by DODD.

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July 2, 2014

Georgia DUI Vehicular Homicide

Prather v. State, ___ S.E.2d ___, 2010 WL 892084 (Ga.App. March 15, 2010).

Prather was involved in a car collision that killed another driver when Prather’s vehicle crossed a median and crashed into oncoming traffic. Based on this collision, Prather was indicted for (1) vehicular homicide through a DUI less safe violation, (2) vehicular homicide through a reckless driving violation, (3) DUI less safe, (4) reckless driving, and (5) driving with a suspended license.  The jury found Prather guilty of all five charges.

Following a jury’s guilty verdict on all five counts, Prather moved for a new trial challenging, in part, the sufficiency of the evidence as to the charges of vehicular homicide based on reckless driving and reckless driving, and he also argued that the trial court improperly charged the jury on each of the charges except his suspended license charge. The trial court ultimately agreed that the jury charges as to the counts other than the suspended license charge were improper and granted Prather a new trial as to each of the charges except for the suspended license charge. In its orders addressing Prather’s motion for new trial, the trial court did not make explicit findings as to the sufficiency of the evidence to convict on the counts based on reckless driving.

Prather initially filed an appeal from the trial court’s orders which granted him a new trial.  Prather challenged the sufficiency of the evidence to prove that he intended to cross into oncoming traffic as alleged in the indictment. The Court of Appeals dismissed his first appeal on jurisdictional grounds. Facing a second trial, Prather filed a plea in bar asserting double jeopardy based on the State’s alleged failure to present sufficient evidence in the first trial as to the counts based on reckless driving.  The trial court found the evidence sufficient, denied the plea, ruled that a second trial could be held even in the event that Prather appealed the denial of his plea in bar, and set a trial date. Prather filed this appeal and an emergency motion in this Court seeking to stay the second trial pending the outcome of the appeal. This Court granted the motion, the trial was stayed, and we now address Prather’s appeal.

In this appeal, Prather contended that he cannot be retried on the counts predicated on reckless driving because the State failed to prove the offenses as alleged in the indictment.

What is the standard for determining whether a retrial is precluded upon a   post-conviction reversal or grant of a motion for new trial?

If the evidence in the original proceeding meets the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the case may be retried:

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

443 U.S. at 319(III)(B).

With respect to the charges based on reckless driving, the indictment accused Prather of the following:

[Count 2]: [Prather] did unlawfully, without malice aforethought, cause the death of [the victim] through the violation of OCGA § 40-6-390, by driving his vehicle in reckless disregard for the safety of persons or property, by leaving the roadway and driving into oncoming traffic[,] contrary to the laws of [Georgia]….

[Count 4]: [Prather] did drive a motor vehicle in reckless disregard for the safety of persons and property, by leaving the roadway and driving into oncoming traffic[,] contrary to the laws of [Georgia]….

The evidence at showed that as Prather drove his vehicle through the rain at 15-20 mph over the speed limit, he was weaving in and out of his lane.  A witness saw him “driving fast and swerving” and described it as “an accident waiting to happen.” Prather eventually crossed the median into oncoming traffic. He collided with a van, which was then hit by a tractor trailer, and the occupant of the van was killed. Prather asked a bystander for a breath mint.  A doctor who treated Prather for his injuries smelled alcohol on Prather’s breath. Prather’s blood alcohol concentration, as determined by what appeared to be a hospital blood test, was 0.135.

Prather argued that the State failed to prove the offense as indicted, i.e., that he drove recklessly by “leaving the roadway and driving into oncoming traffic.” However, there was testimony from an eye witness who described Prather as “weaving,” “kind of not really staying in his lane, swerving … I saw the vehicle go over into like a patchy grassy area off of the expressway back onto the expressway and then over the median into incoming traffic going in the opposite direction.” While Prather argued that he was hit from behind, causing him to crash and that there was no evidence that he specifically intended to drive off of the roadway or cross into oncoming traffic, the jury was authorized to disbelieve him.  Further,”[i]n order to establish a [reckless driving] violation …, the State needed only to present evidence showing that defendant drove his car in a manner exhibiting reckless disregard for the safety of persons or property,” through facts as alleged in the indictment. The evidence showed that Prather, on the day alleged in the indictment, drove while intoxicated and weaved in and out of his lane, on and off the roadway, ultimately crashing into oncoming traffic and killing the victim. The allegations in the indictment were thus proven by this evidence. Therefore, the trial court did not err in ruling that the evidence sufficed to support the guilty verdict as to the indicted reckless driving offenses.

To the extent that Prather contends that the evidence at trial fatally varied from the allegations in the indictment, our courts do not “employ an overly technical application of the fatal variance rule, focusing instead on materiality.” (Punctuation omitted.) Delacruz v. State, 280 Ga. 392, 396(3), 627 S.E.2d 579 (2006). We conclude that the allegations here were sufficiently definite to inform Prather as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and that the allegations in the indictment adequately protected Prather against another prosecution on the merits for the same offense. See id.

What do you do when the trial court denies your plea in bar and decides that the trial will go forward despite your appeal of its denial?

The trial court found Prather’s plea in bar to be nonfrivolous, but ruled that it could proceed with a new trial during the pendency of this appeal. After Prather filed his appeal, he filed an emergency motion with the Court of Appeals seeking to stay the second trial pending the outcome of the appeal. The Court of Appeals granted the motion, the trial was stayed, and his appeal was addressed.

Be aware that if the trial court finds the plea in bar to be frivolous, the retrial may continue despite the filing of a notice of appeal.  See, Rielli v. Oliver, 170 Ga.App. 699, 699-700, 318 S.E.2d 173 (1984) (noting that a denial a plea of double jeopardy is directly appealable but holding that “if the plea of double jeopardy is found to be frivolous, the filing of a notice of appeal by the defendant shall not divest the trial court of jurisdiction over the case”).  As explained in Patterson v. State, 248 Ga. 875, 876, 287 S.E.2d 7 (1982), addressing a non-dilatory plea of double jeopardy,

the rights conferred on a criminal accused by the Double Jeopardy clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence. To be sure, the Double Jeopardy Clause protects an individual against being twice convicted for the same crime, and that aspect of the right can be fully vindicated on an appeal following final judgment. However it has long been recognized that the Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense. Obviously, this aspect of the guarantee’s protections would be lost if the accused were forced to “run the gauntlet” a second time before an appeal could be taken; even if the accused is acquitted, or, if convicted, has his conviction ultimately reversed on double jeopardy grounds, he has still been forced to endure a trial that the Double Jeopardy Clause was designed to prohibit. If a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs.

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Ben Sessions is a Georgia DUI lawyer and partner in the Norcross firm of McIlhinney & Sessions. His practice is focused on the defense of clients charged with DUI and other drug and alcohol-related offenses. Ben has co-authored articles and participated in seminars before the National College for DUI Defense (NCDD), the Georgia Public Defender Standards Council, and other organizations. He is certified as both a Practitioner and Instructor of the National Highway Safety Traffic Safety’s Standardized Field Sobriety Testing procedures. He has received extensive training in forensic breath, blood, and urine testing. He is a member of the National College for DUI Defense, the National Association of Criminal Defense Lawyers, and the Georgia Association of Criminal Defense Lawyers. Ben graduated from the University of Georgia School of Law. In 2010, he was named a “Rising Star” in the area of DUI defense by the Super Lawyers Magazine, and he was recognized for the “Greatest Trial Victory of the Year” by the Georgia Defense of Drinking Drivers Group.

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