State v. Neher

Decision Date13 April 1989
Docket NumberNo. 55668-7,55668-7
Citation112 Wn.2d 347,771 P.2d 330
CourtWashington Supreme Court
PartiesSTATE of Washington, Respondent, v. Thomas Allan NEHER, Petitioner.

Bianchi, Berzins & Bianchi, Peter Berzins, Seattle, for petitioner.

Norm Maleng, King County Prosecutor, Ellen O'Neill-Stephens, Deputy, Seattle, for respondent.

BRACHTENBACH, Justice.

At issue is whether the vehicular assault statute requires that the defendant's actions in driving recklessly or while intoxicated be the sole proximate cause of serious bodily injury to another, or whether that conduct can be one of two or more proximate causes. We hold that the vehicular assault statute does not require that the defendant's actions be the sole proximate cause of the injury. We affirm the Court of Appeals, which affirmed defendant's conviction for vehicular assault. State v. Neher, 52 Wash.App. 298, 759 P.2d 475 (1988).

On the evening of March 2, 1986, defendant was driving northbound on Beacon Avenue South, in a residential area of Seattle, approaching the intersection of Beacon and South Warsaw Street. The posted speed limit on Beacon Avenue South was 35 m.p.h. Defendant was travelling well over the speed limit. His own expert witness placed his speed at 50 to 70 m.p.h. Various witnesses for the State placed his speed from 70 to 80 or 90 m.p.h. One expert testified that the speed of defendant's car when it began to brake was a minimum of 65 m.p.h. but probably closer to 75 m.p.h Douglas Spicer, who was driving his car west along South Warsaw at the same time, stopped at the stop sign at the intersection, looked left, saw no vehicle, then looked right, and proceeded into the intersection. Defendant's car collided with Spicer's; a passenger in Spicer's car was hospitalized for 6 weeks as a result of the serious injuries received in the collision.

Defendant was charged with vehicular assault. At his trial, the State introduced evidence that two and one-half hours after the collision defendant's blood alcohol content was .11 percent. The State presented expert testimony to the effect that, with that blood alcohol content, an individual's driving, two and one-half hours earlier, would have been impaired by alcohol.

Among other things, defendant presented evidence in an attempt to show that Spicer's conduct was a proximate cause of the collision. This evidence raised questions about whether Spicer looked left again after looking right, whether he looked left long enough, whether he was travelling too fast when he entered the intersection, whether, in light of a hearing problem, Spicer was able to hear defendant's oncoming car, and whether Spicer's vision was obstructed by parked traffic.

The trial court instructed the jury on the elements of vehicular assault, including the requirement that the State prove beyond a reasonable doubt that defendant operated his vehicle in a reckless manner or was under the influence of intoxicating liquor and that this conduct was "the proximate cause of serious bodily injury to another...." Instruction 5, Clerk's Papers, at 56.

The trial court gave the following instruction, to which defendant excepted, on proximate cause:

The term "proximate cause" means a cause which, in a direct sequence, unbroken by any new independent cause, produced the injury, and without which the injury would not have happened.

There may be more than one proximate cause of an injury.

Instruction 10; Clerk's Papers, at 61.

Defendant was convicted of vehicular assault. Defendant's main contention is that the vehicular assault statute requires that his conduct be the sole proximate cause of the serious injury to another.

In construing a statute, the goal is to ascertain and carry out the intent of the Legislature as determined primarily by the language of the statute itself. State v. Wilbur, 110 Wash.2d 16, 18, 749 P.2d 1295 (1988). If the language is plain and unambiguous, the meaning is derived from the wording of the statute itself. Wilbur, at 19, 749 P.2d 1295.

The vehicular assault statute provides in relevant part:

(1) A person is guilty of vehicular assault if he operates or drives any vehicle:

(a) In a reckless manner, and this conduct is the proximate cause of serious bodily injury to another; or

(b) While under the influence of intoxicating liquor or any drug, as defined by RCW 46.61.502, and this conduct is the proximate cause of serious bodily injury to another.

RCW 46.61.522.

Defendant argues that the use of the word "the" in the phrase "the proximate cause" means that the defendant's conduct must be the sole proximate cause of the injury, and not one of two or more proximate causes. He maintains that rules of grammar and the dictionary definition of the word "the" show that the statute clearly and unambiguously requires that the defendant's conduct be the sole proximate cause of the injury, and that even if the statute is found to be ambiguous the rules of strict construction of penal statutes and lenity require that any doubts be construed in favor of the defendant. Further, defendant argues, comparison of the language used in the vehicular assault statute and the vehicular homicide statute favors his position. Following from his argument that the defendant's actions must be the sole proximate cause of the injury, he maintains that Instruction 10 relieved the State of its burden of proof as to causation.

We do not agree with defendant's construction of the statute. Contrary to his position, the use of the word "the" in the vehicular assault statute, as opposed to the word "a", does not mean that the defendant's conduct must be the sole proximate cause of the injury to another. Instead, by this language the Legislature indicated its intent that the defendant's conduct be the proximate cause, as opposed to a cause in fact which does not satisfy the legal...

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