Wednesday, May 19, 2010


Criminally negligent homicide is defined at ORS 163.145. One commits this crime by causing the death of another “with criminal negligence,” which is in turn defined at ORS 161.085(10):

“’Criminal negligence’ or ‘criminally negligent,’ when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person fails to be aware of a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to beaware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

The crime of “criminally negligent homicide” encompasses more than just cases in which death results from driving. It includes any case in which a defendant causes the death of another by behavior that is “criminally negligent.”

Under Oregon law, this mental state of “criminal negligence” requires more than inadvertence, inattentiveness, or, in driving cases, the added commission of traffic violations. The legislative commentary to the 1971 Criminal Code revision on the (then) new crime of criminally negligent homicide stated that the purpose in defining this crime was to include conduct by a defendant who is unaware of great risk “only because [she] is insensitive to the interests and claims of other persons in society.” (emphasis added).

This insensitivity to the safety and well-being of others must then produce a “gross deviation” from the standard of care that a reasonable person would use.

Historically, most vehicular homicides are charged as Manslaughter I or II because they involve intoxicated drivers who also speed, make unsafe passes, run stop signs or red lights, and engage in other aggravated, aggressive driving. Under Oregon case law, Criminally Negligent Homicide cases typically involve this same level of bad driving, but usually without intoxication. Indicted criminally negligent vehicular homicides are fairly rare since the level of bad driving required by this crime is usually accompanied by intoxication, which then elevates the conduct into the “reckless” category, resulting in a charge of manslaughter.

In Oregon, not every fatal vehicle accident can or should result in felony homicide or other criminal charges, even when caused by a driver committing traffic violation(s) and/or being inattentive. The law requires substantially more egregious conduct to charge a driver with a criminally negligent homicide, with its presumptive prison sentence and many other serious consequences. Drivers who are not charged criminally do not, however, escape the law’s punishment; they are held responsible by a civil lawsuit using the standard of ordinary or “civil” negligence. This lesser form of negligence is generally defined as a failure to use “reasonable care” when acting in a given situation. “Reasonable care” is “what a reasonable person of ordinary prudence would, or would not, do in the same or similar circumstances.” Wollston v. Wells, 297 Or 548 (1984).

This case, with the driver being either inattentive or unable to see, possibly both, while engaging in an unlawful left turn, may well involve civil negligence, but the grand jury concluded that it is not chargeable as criminally negligent homicide.

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