People v. Garner, 88SA55

Decision Date23 October 1989
Docket NumberNo. 88SA55,88SA55
Citation781 P.2d 87
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Earl Wayne GARNER, Defendant-Appellee.
CourtColorado Supreme Court

Barney Iuppa, Dist. Atty., Fourth Judicial Dist., and Gordon R. Denison, Deputy Dist. Atty., Colorado Springs, for plaintiff-appellant.

Mark J. Rue, Colorado Springs, for defendant-appellee.

Justice MULLARKEY delivered the Opinion of the Court.

The People bring this appeal pursuant to section 16-12-102(1), 8A C.R.S. (1986), to review the ruling of the trial court dismissing a vehicular homicide charge against the defendant Earl Wayne Garner. 1 We find that the trial court erred in dismissing the charge at the preliminary hearing by concluding that the act of speeding, not the intoxication of the defendant, was the proximate cause of the death of the victim. We reverse the trial court's dismissal of the vehicular homicide charge.

I.

On November 7, 1987 Garner was driving a pickup truck on a four-lane divided residential street in Colorado Springs. A small group of children was on the median, preparing to cross the street in front of Garner's vehicle. All of the children stopped, except for twelve-year-old Lisa Uhrenic who continued to cross the street. Garner, who was traveling in the left lane of traffic, swerved into the right lane in an apparent attempt to avoid the child but the right front of his truck struck and killed her. Garner was charged with vehicular homicide, driving under the influence and driving with excessive blood alcohol content. 2

At the preliminary hearing on the vehicular homicide charge, evidence established that Garner's blood alcohol level was .201 one hour after the collision. The defense stipulated to Garner's intoxication, to his driving the truck which hit the child, and to Lisa Uhrenic's death as a result of the accident.

An investigating officer testified on the basis of skid marks that Garner was driving an estimated 43.39 miles per hour in a posted 35 mile per hour zone. He described the point of impact as four inches from the right side of the vehicle. The officer offered his opinion that, had Garner been traveling at the posted speed limit, the vehicle would have stopped three feet after striking Uhrenic as opposed to the 26 feet which the vehicle actually traveled after the point of impact. It was the officer's opinion that the accident would have occurred even if Garner had been driving at 35 miles per hour but he could not say whether the death would have occurred under those circumstances. Another officer testified, that in his opinion, the "proximate cause" of the accident was not Garner's conduct but rather the accident resulted because Uhrenic ran between traffic and crossed in front of the vehicle.

Other eyewitnesses, who were driving directly behind Garner on the date of the accident, testified that Garner was not weaving, speeding, or driving in a careless manner. Their testimony also indicated that Garner turned to his right in an attempt to avoid hitting Uhrenic. Garner did not testify at the preliminary hearing.

At the conclusion of the hearing, the trial court dismissed the charge of vehicular homicide because it found that the speed at which Garner was driving, not his intoxication, was the proximate cause of the girl's death. The court said In this case the court can find as I said earlier, that the negligent activity, speeding, in the light most favorable to the People, was a cause of death of the girl but I cannot find that the intoxication of the defendant had any impact upon that, either by evidence or judicial notice.

It is from this order that the People appeal.

II.

The relevant portion of the vehicular homicide statute, section 18-3-106(1)(b)(I), 8B C.R.S. (1986), states as follows:

If a person operates or drives a motor vehicle while under the influence of any drug or intoxicant and such conduct is the proximate cause of the death of another, he commits vehicular homicide. This is a strict liability crime.

Section 18-3-106(2)(c), 8B C.R.S. (1986) provides that "[i]f there was at such time 0.10 percent or more by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was under the influence of alcohol." Here it is conceded that Garner was operating a vehicle while under the influence of an intoxicant at the time of the accident. The prosecution maintains that the trial court erred in narrowly interpreting the statutory language of "proximate cause" to require proof that intoxication rather than a defendant's conduct of driving while intoxicated was the proximate cause of the death. We agree.

We upheld the constitutionality of this statute in People v. Rostad, 669 P.2d 126 (Colo.1983), where we discussed at length the legislature's designation of this offense as a strict liability crime and its inclusion of the proximate cause requirement. We construed the statute as requiring that the prosecution prove "voluntary conduct, as defined by section 18-1-501(9), in the operation or driving of a motor vehicle...." Id. at 129. We held that the proximate cause element of the crime relates to a defendant's operation of a motor vehicle and is measured by an objective test. Id. at 128. "Voluntary act" is defined in relevant part in section 18-1-501(9), 8B C.R.S. (1986) as "an act performed consciously as a result of effort or determination...." Thus, in order to obtain a conviction under this statute, the prosecution must prove that the defendant voluntarily drove while intoxicated and that his driving resulted in the victim's death.

There is no requirement under the current statute that the prosecution also prove that the defendant's driving was negligent. Whether Garner was speeding is not relevant under the statute. In this regard, the statute represents a significant departure from prior statutes which did require such proof. See, e.g., § 40-2-10, 3 C.R.S. (1963) (vehicular homicide required driving under the influence "in a reckless, negligent or careless manner or with wanton or reckless disregard of human life"). The negligence elements were eliminated in 1971 and the present version of the statute was adopted in 1977. See ch. 121, section 1, § 40-3-106, 1971 Colo.Sess.Laws 388, 419 and ch. 224, section 1, § 18-3-106, 1977 Colo.Sess.Laws 959, 960-61. The 1977 House Judiciary Committee hearings support this court's interpretation of the law in the Rostad case. There, the bill was explained as providing that "if a person voluntarily drives a car and is intoxicated and that conduct, driving while intoxicated, is the proximate cause of the death of another, then the person is guilty, under those circumstances, of vehicular homicide." Tape Recording of testimony before House Judiciary Committee on House Bill 1654, March 25, 1977, 51st General...

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