Legislature(1995 - 1996)
04/12/1995 01:17 PM House JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 255 - NEGLIGENT HOMICIDE BY AUTOMOBILE REPRESENTATIVE SCOTT OGAN, sponsor of HB 255, stated this bill is an act that creates a crime of negligent vehicular homicide. The bill is designed to fill an existing gap in Alaska's criminal code. Representative Ogan said, "Unfortunately, it has taken the several lives to illustrate the need for this legislation." REPRESENTATIVE OGAN said that under current Alaska law a person who commits a traffic infraction, such as passing in a no-passing zone, or running a red light, and is not under the influence of some drug, alcohol, or isn't acting in an extremely negligent way like running red lights at a high rate of speed...at this point, if they run a red light and kill someone, they get a traffic ticket. Representative Ogan said he didn't feel this was appropriate. He said his dad told him, when he was growing up, that when he got behind the wheel of a car it was a 2-ton missile. He stated that a car is a potential deadly weapon and when there is a disregard for traffic laws, and when it results in a death, he feels that something more than a $50 fine, or a minimal slap on the wrist, is more appropriate. Representative Ogan asked for any questions the committee might have. CHAIRMAN PORTER stated there were two people on teleconference and three people in the audience to testify. He asked if there were any questions of the sponsor. REPRESENTATIVE CON BUNDE noted he did not find a fiscal note and asked if that was an oversight. Number 085 REPRESENTATIVE OGAN answered that there was an assumption it came from another committee, but a fiscal note was requested and he anticipates receiving it shortly. CHAIRMAN PORTER asked if there was someone from the Department of Law who could shed some light on that. CHAIRMAN PORTER asked for Mr. Mark Campbell, on teleconference in Mat-Su, to testify. MARK CAMPBELL via teleconference in Mat-Su, testified in support of this bill and asked committee members to support it as well. He stated his reason for supporting HB 255 is through personal experience of recently losing his 19-year-old son through a negligent driver. Mr. Campbell said his son's friend and four other teens were injured. He stated that it was his experience that just a simple traffic violation, a maximum of a $300 fine, and ten minutes in traffic court sends an entirely wrong message to the community and to other teens. Mr. Campbell said, "In this case the offender was an 18-year-old driver." He said he and his wife regret there is not more in state law that can be done. MR. CAMPBELL said in working with the District Attorney (DA) and the troopers, he and his wife were surprised there is nothing beyond just traffic court. He related he and his wife are not suing the young man. They don't desire that his life should be ruined. It was negligence on his part and they wish that he had acted more responsibly, but that was not the case. Mr. Campbell just regretted there was not at least an opportunity for his license to be taken. He said he saw the same young man just a month later as the young man sped through an intersection, which caught he and his wife's attention. He was surprised to see the same young man and he got a hold of him and spoke to him about it, and spoke to his parents about it. He said he would just like to see that there is more (indisc.) or a law which gives more incentive in a situation such as this. Mr. Campbell said the person who had caused the accident was just graduating and he thinks it sends an entirely wrong message to all high school kids that there are no real consequences for that type of negligence. Mr. Campbell stated, "In our case, it was basically a $300 fine and ten minutes in traffic court, and that's for two deaths and four injuries." He went on to say he would like to see new legislation that would do more and offer more in this case. Number 200 REPRESENTATIVE AL VEZEY asked Mr. Campbell why he thinks the state should take action when he declined to sue this individual in court. He said it seems a little contradictory there. MR. CAMPBELL replied he simply thought there should be a loss of license for a period of time, perhaps just to put it in a more serious situation, to face up to the responsibility of what can be done. He said, "I understand there is civil action you can take. The reality of that is simply that you would spend your time and energies in a situation where, when you lose your 19-year-old son, or, in our case, I'm not limiting it to that. I'm sure the pain is the same for anybody who has lost a loved one due to an accident like this. Their pain would be the same." Mr. Campbell went on to say, "Pursuing a civil matter, you don't have the opportunity to put it to rest, to lay it aside." He stated he and his wife did not want to live their lives hounding and pursuing maybe a civil judgment. He pointed out you would have to track this young man for the rest of his life, and they chose not to do that. He said they did not want their lives to become embittered or unresolved in this matter. They did not want his life to be that way as well; however, he thinks there is still too little that can be done. Number 245 REPRESENTATIVE VEZEY said he believes Mr. Campbell's testimony was that he thought it was be appropriate in cases of this nature, if an individual were to lose their license. He asked if Mr. Campbell had not testified to that effect. MR. CAMPBELL answered, "I certainly think there should be something that, when you cause a death, and it is negligence on your part, I think that should be an absolute first thing that happens." He said in their situation, they certainly saw the message being sent to so many other teenagers there is no action being taken. REPRESENTATIVE VEZEY said the reason he asked that question is there is not a provision in this bill for revocation of license. There is no change in that regard. He pointed out this bill provides for making negligent vehicle homicide a misdemeanor, which carries jail time, but does not carry the revocation of driving license privileges. MR. CAMPBELL replied, "Again, if the judge had a little bit more leeway to do something, and if the judge chose to, instead of imposing jail term, it could be moderated with a driver's license revocation. In fact, a jail term might be needed in some situations." He believes it gives greater recourse than a simple traffic violation would. Mr. Campbell related they had to track down the action that was being taken, and finally found it was in traffic court. He said he and Mrs. Campbell requested to speak at the time because nothing was being done at all. He said he was able to talk to the judge and request at least the $300 fine, or perhaps community service in some area that would bring it home. He stated he suggested ambulance service or that type of thing. The judge gave that, but it was the maximum he was able to do. But that was only traffic court. CHAIRMAN PORTER said they were checking right now to see whether this bill would give the court the option of suspending. He saw the Department of Law people shaking their heads and said the committee might want to make an addition to this bill. Chairman Porter asked for Scott Richardson to testify via teleconference. Number 300 SCOTT RICHARDSON, testifying via teleconference from Mat-Su, stated his son was also killed in the same accident as Mr. Campbell's son. The boys were good friends. He said when they found out the maximum penalty for reckless or negligent driving which resulted in a death was a traffic ticket and a $300 fine, he and his wife were dismayed. Mr. Richardson related that in talking to the DA, and eventually, the traffic court judge, they said in most states, there is a misdemeanor charge for this kind of thing. He said there are three levels: A traffic ticket; a misdemeanor; and a felony. In Alaska there is only a traffic ticket and a felony, no middle ground. He went on to say, "It's extremely difficult to have a felony charge, or vehicular homicide situation. You have to have the person be drunk, or on drugs, or some extreme kind of thing which, from the DA's example he shared with them, there were a number of situations where the DA felt it should be convicted as a felony, but there just wasn't enough evidence." Mr. Richardson said it was very difficult to get that felony, and he believes there should be a medium punishment because the punishment should fit the crime. He said, "It was a dangerous and snowy day and his recklessness resulted in the death of our son. What does that say to society? We just give him a traffic ticket and a $300 fine. We're just sending the wrong message." Mr. Richardson said the judge and the DA both agreed. The judge said a misdemeanor or felony charge would give a little more room to decide what he thought was appropriate in these situations. Mr. Richardson feels there is a gap in Alaska law that needs to be filled. Number 370 REPRESENTATIVE BUNDE thanked both gentlemen for testifying, knowing it was very difficult for them, and hopefully, some progress in this area of legislation will add to the healing process. Number 375 CHAIRMAN PORTER added that he had a requirement in his life to deal with these kinds of situations on a professional level, and for what it's worth, the approach expressed by Mr. Campbell, in terms of trying to bring the matter to closure, is the best attitude to take and he commends Mr. Campbell for having the ability to take it. Chairman Porter then asked Valerie Lemon to speak. Number 390 VALERIE LEMON, P.O. Box 870441, Wasilla, Alaska, testified in Juneau. She stated she was involved in a car accident in November 1991 and her sister, Lori, was killed and Valerie was badly injured and they didn't know if she would live. She said, "My brother was driving the car and he got a skull fracture. The lady who ran the red light hit Lori in the side of the car where she was sitting, and I was in the back." She related she used to be an excellent figure skater when she was 8-years-old, and now she can't do it because of the car accident and she is upset that all the lady got was a $50 ticket. Miss Lemon said, "This is Lorian the teacher of this, the day that she died, called `I remember Lorian.' Her long hair. Her beautiful smile. Her wonderful laugh. Her (indisc.). Her graceful skating. Her ability to make me feel as good as a person and a teacher. I will never forget my last memory of Lorian picking up all the flowers her father sent for her birthday, that shy smile as she opened up her card, not knowing who they were from, and then the widest, most beautiful smile when she knew. It's the one memory I will always cherish." Miss Lemon showed a picture of Lorian that her dad had taken. CHAIRMAN PORTER thanked Miss Lemon and complimented her on her testimony. He then called on Valerie's mother, Mrs. Lemon. Number 500 FLO LEMON, P.O. Box 870441, Wasilla, Alaska, testified in Juneau. Ms. Lemon stated, "Almost three and one-half years ago, at the intersection of Muldoon and Northern Lights, three of my four children were involved in an automobile accident. Lorian, who had just turned 11 the day before, was killed instantly. Valerie was injured very critically, and my 17-year-old son, who was driving, was also injured." Ms. Lemon went on to say that the lady who had run the red light and hit her children's car was not drunk, not on drugs; just in a hurry to get to work. She said the woman was not paying attention and didn't see the light turn red. Ms. Lemon said there is something wrong with a system that allows a $50 fine for killing someone while breaking a traffic law such as running a red light. She related that Valerie, in her testimony, had hardly touched the surface of what she's been through and has yet to go through. MS. LEMON stated: "I want the laws to change." She feels that people need to be responsible for their own actions. She pointed out that no matter what the size of a car it can be a dangerous weapon if you are negligent. She asked the committee to please help pass this bill to protect others from going through what her family and friends have gone through. She related: "If you've ever had a telephone call at work, it's a parent's nightmare." Ms. Lemon said when she got the phone call she only knew her son was involved and had no idea her two girls were involved in this accident. Ms. Lemon said, "It is the worst thing when you see, at a hospital, all these blue uniforms coming to you, and I hope to God that not any one of you will have this happen to you." She continued, "I hope this law gets passed because I think it was something that was needless. It was a very violent death and it was not necessary." CHAIRMAN PORTER asked if anyone else would like to give testimony on HB 255. MARGOT KNUTH, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW, said she "very much feels for the losses heard about in the committee meeting. If there were a way that our laws could make people whole in these situations, truly, we would want that to happen." She stated that her points today are fairly technical legal points and wouldn't expect any of the people heard, who have suffered, to really be able to appreciate this perspective and so she apologized to them. She said she "by no means wants to belittle the circumstances they have gone through." MS. KNUTH related the problem from a legal perspective, there is the crime already called "criminally negligent homicide," which is virtually identical to the crime being proposed. It is a Class C felony and if negligent vehicular homicide became a crime, it would become a lesser included offense of criminally negligent homicide. A lesser included offense means that in every case that went to trial, the jury would have a right to hear about this other lesser offense, and juries frequently take advantage of lesser included offenses. It's a way of sort of "splitting the baby" and pleasing both the prosecution and the defense. She said, they know if there was an offense such as this, they would lose virtually every criminally negligent homicide case that they got. The jury would reduce it to negligent vehicular homicide and it would be a misdemeanor offense. MS. KNUTH stated the difference between the two is two words. She asked the committee to look at the bill on page 1, line 13: For criminally negligent homicide it is, instead of "perceiving an unjustifiable risk," it's "perceiving a substantial and unjustifiable risk." And on line 14, instead of "constituting a deviation from the standard of care," criminally negligent homicide "constitutes a gross deviation from the standard of care." She said it is very unlikely that a jury would be able to tell the difference between an unjustifiable risk and what is a substantial and unjustifiable risk, and what is a deviation from the standard of care, and what is a gross deviation from the standard of care? She added that these are concepts that are difficult enough to explain to a jury. MS. KNUTH noted two things: "If you were seeking to revoke a person's driving license with this new offense, you would need to also amend AS 28.15.181." She then listed the types of convictions that are grounds for the revocation of driver's licenses: Manslaughter or negligence resulting from driving a motor vehicle. She stated the committee would need to add "negligent vehicular homicide" to that list. There is a Class A misdemeanor driving offense right now of reckless driving, that is 28.35.040. She said there is something for criminally negligent homicide and negligent driving. There are only certain circumstances when it applies and it apparently was not applicable in the running the red light situations described here today. MS. KNUTH said traditionally, criminal law has stopped with criminal conduct and that is what criminally negligent homicide is, the lowest form of criminal behavior the law is taking action against. Anything less than that is civil negligence. She stated to make criminal negligence a crime is entering an area not entered before. Ms. Knuth said society's answer is civil liability for civil negligence. She agreed all of the problems described by Mr. Campbell are very real and they do prolong the entire experience and it may not be economically, or in any way rewarding to do it, but that is the remedy that Alaska law specifies for civil negligence. MS. KNUTH also noted if a conviction is obtained in a criminal case, that creates almost a per se judgment in a civil case. There is no need to go through and reprove the civil case. She said it could be anticipated there would be a number of people who want these civil negligence cases prosecuted because if there is a conviction they could use it for their liability cases. Ms. Knuth stated the way the traffic system is set up, licenses can be revoked if a person accrues more than a certain number of points in a limited period of time. She said the types of driving violations described in the hearing don't involve enough points to lose a license on just the one incident, but other bad driving resulting in point offenses, that would result in license revocation. She asked if she could answer any questions. Number 620 REPRESENTATIVE DAVID FINKELSTEIN commented that this is a complicated area. He asked Ms. Knuth to tell him a little more about the reckless driving, and what it takes to get into that category, and the reference numbers. Number 630 MS. KNUTH responded it's 28.35.040, and it says "A person who drives a motor vehicle in a manner that creates a substantial and unjustifiable risk of harm to a person or to property is guilty of reckless driving. A substantial and unjustifiable risk is a risk of such a nature and degree that the conscious disregard of it, or failure to perceive it, constitutes a gross deviation from the standard of conduct that a reasonable person would observe in this situation." REPRESENTATIVE FINKELSTEIN said it didn't sound much different than the standard for the Class C felony of criminally negligent homicide. It still has `gross deviation.' MS. KNUTH agreed and said to a certain extent, the criminally negligent homicide is reckless driving that results in death. REPRESENTATIVE FINKELSTEIN brought up the fact that once the things get on the books, they get subsumed under another category when the jury is given its choices. He asked what the terminology was. MS. KNUTH said, "the lesser included offense." REPRESENTATIVE FINKELSTEIN asked why, since it doesn't require a death, why wouldn't that be a lesser degree when someone is up for charges on negligent homicide? MS. KNUTH answered that in that situation, the lesser included offense would require the jury to find that nobody died as a result of the accident. If that was the finding, the reckless driving would be a lesser included offense. Number 650 REPRESENTATIVE BUNDE said he, too, was appalled that these things happen and just end up in traffic court. He asked Ms. Knuth to speculate why they'd end up with a $50 traffic ticket instead of these other tools that could have been used. Number 675 MS. KNUTH replied that sometimes accidents happen and sometimes they are fatal. And it wasn't a crime. It was certainly tragic and nothing anyone would desire, but in these circumstances it was related the driver wasn't intoxicated or on drugs. It was simply a failure to pay sufficient attention, or inability to stop in time. She stated that culpability is measured more by the person's conduct than what happens as a result of that conduct. Ms. Knuth agrees the results in these cases were awful, but in terms of how culpable was the driver, there are times when these situations happen and it doesn't go beyond the level of negligence. REPRESENTATIVE BUNDE said from his point of view, part of the laws should also involve some societal condemnation, and when there is a death involved that need seems to elevate for him. Representative Bunde asked Ms. Knuth about her testimony on revocation of licenses. When there is an accident where it involves a loss of life, would she see a problem with increasing to points to this type of accident? Number 690 MS. KNUTH responded she thinks the point schedule is developed through the Department of Motor Vehicles and regulations, and that is something they could probably look at. She assumed there are points given for negligent driving and may have been charged in these cases. REPRESENTATIVE VEZEY said his recollection that reckless driving carried a variable penalty of 6 to 12 points, at the discretion of the judge, but he could be wrong. MS. KNUTH said she thought that was accurate. She saw that reckless driving is basis for license revocation, but does not see negligent driving on that list. She said it may be it is not there and the reason the action might not have been taken. CHAIRMAN PORTER stated that at some point he thought they dropped "negligent" for "careless." They have just gone from reckless to careless. Number 715 REPRESENTATIVE CYNTHIA TOOHEY asked Ms. Knuth if the rules on the book now are the maximum? She asked, "If you had your druthers, would you take this piece of legislation and superimpose it onto the one we have now?" Number 720 MS. KNUTH answered she would not because she feels there is a need for a felony vehicular homicide law, and there are people who need to be on probation who have caused loss of life. She stated her concern is if this misdemeanor offense is created that all of those felony people are going to get advantage from that. She said as a matter of philosophy, she thinks criminal law should be restricted to criminal conduct. If it is just a civil negligence in the conduct then it should be restricted to civil penalties, except for the traffic matter, which is sort of a parallel matter that is going on. Number 735 REPRESENTATIVE VEZEY said he thinks there is some real problem with the law, and there have been a lot of "gyrations" the last six or eight years over mandatory insurance and he believes the standard right now is minimum insurance requirement liability insurance is $100,000? He asked, "That is maximum per occurrence isn't it?" MS. KNUTH said she would have to look it up. REPRESENTATIVE VEZEY stated he does believe that is a serious weakness in the law. He felt that figure is too low. Representative Vezey feels this area of minimum insurance requirements should be addressed. He stated if this requirement is raised there would be some people who will be assessed an insurance premium that will be prohibitive to them economically; therefore, they will not be able to satisfy the Department of Motor Vehicles requirements to get a license. This would amount to economic revocation of their driver's license. Representative Vezey said he saw nothing wrong with denying them a license if they can't afford the risk. This is an approach he would like to see the committee pursue. He pointed out you would not be using either civil, or traffic, or criminal courts to pursue a remedy. This would allow the statute to work through the marketplace. Number 771 REPRESENTATIVE FINKELSTEIN said he was trying to assess this category. He asked if Ms. Knuth would try to help him understand the kinds of crimes, under the criminally negligent homicide category, cases that end up in here? He asked if they were mostly drunk driving? MS. KNUTH answered that was correct. REPRESENTATIVE FINKELSTEIN asked if there were others that make up a significant portion of those? Number 773 MS. KNUTH said she didn't know, as she is not familiar enough with the prosecution of these cases. REPRESENTATIVE FINKELSTEIN brought up two more things that might deserve investigation. They are to try to figure something that at least gets into the issue of driver license revocation, perhaps through the point system. Number 780 REPRESENTATIVE JOE GREEN asked Ms. Knuth if a person were to use a gun negligently with no criminal intent, and it discharges and kills someone, are there laws on the books to cover that, or is that also just a minor problem? Number 785 MS. KNUTH answered it is not a minor problem, but not necessarily a criminal matter. She related there are circumstances where kids are involved in shooting accidents and it is negligence. There is no prosecution if it is just negligence. She stated the people involved in these circumstances pay a much greater toll for what they have done, just from having to live with themselves, than anything that could be done to them through the criminal system. Ms. Knuth said she has never seen anyone who accidentally caused the death of someone else who was blase' about it. She said that what could be done through the criminal system pales compared to what they do to themselves. Number 805 REPRESENTATIVE GREEN said he could appreciate what Ms. Knuth was saying, but after the fact, is there some way this can be addressed, if it is not criminal, that there could be something done to the civil laws then that would bring this awareness before the fact. He pointed out that getting a driver's license is a simple thing and we get so blase' about driving a car without realizing it's a killing machine. Representative Green asked where something could be done in the civil side that would be a deterrent. MS. KNUTH said that traditionally, extending the civil court and just the fear of being bankrupted through civil judgment would be a deterrent. Number 820 REPRESENTATIVE VEZEY said he has always been confused on this area of the law, but if the matter was covered by insurance he said he believes you fundamentally have a choice to either go after the plaintiff's assets or the insurance. MS. KNUTH answered, "You go for all of it." She said usually people settle for the insurance because those are the easy dollars. She gave the following example: "You have a $2 million judgment and the insurance is good for $500,000; you can put a lien on the home, good for another $200,000; then you hit their permanent fund dividends for the next however many years." REPRESENTATIVE VEZEY stated he was sure she was right, but the fiduciary guideline is to carry enough insurance to cover your assets, not your assets plus 100 percent. He pointed out you don't sue the insurance company. You sue the party who has insurance. Representative Vezey recognized that if the insurance didn't pay, your other assets would be exposed. MS. KNUTH said that's right, if you had them. Number 845 REPRESENTATIVE TOOHEY wanted everyone to understand why this bill would not work. She said she thinks this is not going to help, or alleviate the problems in the future. She asked if someone doesn't think this is true, to please come forward. Number 850 CHAIRMAN PORTER asked if anyone else would like to provide testimony on HB 255. Hearing none, the public hearing was concluded. He pointed out there were several approaches the committee could take considering this bill and its options, or anything else any of the members might come up with to help with that. Number 865 REPRESENTATIVE OGAN wanted to make a couple of comments. He stated that this was a case where there is a hole in the law. He is not sure if this bill is the proper vehicle, but this problem needs to be addressed. Representative Ogan referred to a comment made by Ms. Knuth regarding the criminal versus the civil argument. He said he believes when you break a traffic law, and it results in a death of a person, it should be a crime, a criminal action. TAPE 95-45, SIDE B Number 000 REPRESENTATIVE OGAN recalled the testimony of Valerie Lemon and Ms. Lemon regarding the accident Valerie and her siblings were in. He said he thinks when someone is as negligent as this, there should be some sort of ramifications for it other than a traffic ticket. He asked the committee to come up with an alternate, or help him with this problem. Representative Ogan said he truly believes these people need to suffer a little more ramifications for breaking the law and killing somebody. REPRESENTATIVE OGAN asked if anybody had more questions or comments. REPRESENTATIVE BUNDE commented he didn't think civil redress is appropriate in this case where people are using vehicles to cause the death of other people. He feels the societal combination of `you've broken a criminal law as well as a civil law.' Representative Bunde is sharing the frustration. He would like to see that gap filled, and he would like to see automatic revocation of driver's license in this case. He stated he refers to the legal experts to get there, but it definitely needs to get there in his opinion. REPRESENTATIVE OGAN commented that sometimes the legal experts have real good legal reasons why we can't do it, but it doesn't necessarily make sense. And it sometimes offends people's sense of right and wrong. He stated he clearly believes these cases have offended his and other people's senses of right and wrong. Representative Ogan said he knows there is a fair amount of outrage with people who can break traffic laws and walk away with impunity basically. Number 085 REPRESENTATIVE TOOHEY asked what are the penalties for felonious killing? CHAIRMAN PORTER responded that it would be a Class B felony. REPRESENTATIVE TOOHEY asked, which means what? MS. KNUTH stated Class B felony is five years in prison, more than a $50,000 fine. CHAIRMAN PORTER said the first thing to address is, he got the impression the idea of making this behavior, i.e., what is tantamount to a single traffic violation a misdemeanor crime, if there is a death resulting, is problematical. REPRESENTATIVE FINKELSTEIN agrees it is problematical in the setting of the law. He said it sounds like it is also a reasonable goal, we just haven't been able to do it in the context of the law. CHAIRMAN PORTER said that is the first hurdle he is asking the committee to consider. He stated if the committee wanted to stay with the notion of making this a misdemeanor crime, then perhaps the ability to suspend or revoke the driver's license can be added, and vote this thing through. Number 135 REPRESENTATIVE VEZEY said he is opposed to making homicide at any level a misdemeanor as he thinks that is going backwards. He said he knows that the prosecution and incarceration of individuals charged with negligent homicide with a vehicle is currently successful. He stated he is not aware of any of those cases that don't involve alcohol or drugs, but as soon as vehicular homicide is made a misdemeanor the ability to put these people under incarceration for ten plus years goes away -- not technically, but from a practical viewpoint it does. Representative Vezey pointed out if you give the jury or defense attorney these kinds of options, this reduces homicide with a vehicle from a possible felony, if it is indeed found by a jury to be criminal negligence, nor intent either because people who are drunk don't intend to kill people, then there would be no more felony convictions. REPRESENTATIVE VEZEY said it's not safe for society to be out in the streets, and because of some of the existing laws we have for getting some of those people are off the streets. Number 165 REPRESENTATIVE FINKELSTEIN asked Ms. Knuth what the effect would be if the committee made it for serious bodily harm, not for death, so it would be an option for the jury if they concluded a person did die, it would then be an alternative to the reckless driving. So it would be a lower standard to meet it, but you would have to have serious bodily harm. Reckless driving is a higher standard, but no proof of serious bodily harm. MS. KNUTH answered she was not quite certain what the implications with that might be. She did not know if the law is so warped that a defendant could argue if the victim died, they certainly suffered serious physical injury. She said she would need to research that. REPRESENTATIVE FINKELSTEIN said just for argument sake, the committee said, serious bodily harm short of death, so it couldn't be a lesser included offense. He felt there should be room out there for the category being discussed here. MS. KNUTH said actually, that would not address the category that has been discussed here today, where the accidents were fatal. REPRESENTATIVE FINKELSTEIN said his first question would still remain, if one made this dependent on serious bodily harm. MS. KNUTH noted assault statutes are used, which relate to serious physical injury in some driving cases. So the law is not limited to things specifically for motor vehicle accidents. A car counts as a dangerous instrument. REPRESENTATIVE FINKELSTEIN asked if all those assault statutes were felonies? MS. KNUTH agreed they are. REPRESENTATIVE FINKELSTEIN said he didn't know if the goal was achievable or not, but the goal is a lower standard, a lower penalty. REPRESENTATIVE BUNDE said in his mind, he thought the committee should continue to explore a criminal penalty for the behaviors being talked about and try to get it out of the civil arena. He pointed out that to address the concern about lesser and included offense, if they have used alcohol then they are guilty of reckless or negligent homicide? MS. KNUTH replied they were able to prosecute them. REPRESENTATIVE BUNDE asked if it would be possible to put some proviso in this or similar legislation of not having used drugs or alcohol, "I have not driven in impaired state." They would only be charged for this offense and not in the other offense so that when you have this lesser and included, somebody who has used chemicals could be charged by the other offense, then the jury can't plead down. MS. KNUTH said this would warrant some pretty close scrutiny by more people than just herself, but she knows the defendants would argue: We weren't intoxicated. We didn't prove it, and therefore, it should be a lesser included offense. She stated the question is how much evidence do they need to get that to the jury, and the jury is then able to do what it wants with the case. She didn't know at what point they could say, "I was a refusal. I didn't even take the intoximeter, and you don't have any evidence of intoxication." Ms. Knuth said she could see that they would want to look at that very closely. CHAIRMAN PORTER asked if you would have a presumption? MS. KNUTH responded, that's correct. Number 275 REPRESENTATIVE TOOHEY said she asked the sponsor if there were any other states that had this law, and he stated that Michigan does have a law on the books. Representative Toohey gave a copy of the law to Ms. Knuth for review. Number 285 REPRESENTATIVE GREEN referred to the lesser included offense and asked if that was a procedure, a law? What triggers that? Number 290 MS. KNUTH answered she didn't know if it was constitutionally required. She thought it was, and the defendant has a constitutional right to ask the court for any and all lesser included offenses, and depending on the charge, i.e., assault in the third degree can be a lesser included offense of assault in the second degree, which is a lesser included of assault in the first degree, and so you get to present all of these to the jury. She went on to say as long as the lesser included offense doesn't have any new elements that aren't found in the bigger offense, you get the instruction. REPRESENTATIVE GREEN said she had hit the key word. There is no sense in trying to attack that portion if there is a constitutional process. He thought maybe there could be one way the committee could attack a court rule or something. MS. KNUTH said no. REPRESENTATIVE BETTYE DAVIS suggested a subcommittee to further pursue HB 255. CHAIRMAN PORTER agreed and said the committee had the will but not the way yet and so what he would like to do is appoint a subcommittee. He asked if there was anyone who would like to serve on the subcommittee? REPRESENTATIVE DAVIS said she would like to serve, and she would like the legal department to be there. CHAIRMAN PORTER appointed a subcommittee with himself as Chair, with Representatives Green, Davis and anyone else. He felt they ought to try to come up with something and he apologized to those testifying that it cannot be brought to a close at that time because they want to try to do something that's meaningful, not something that will result in a tragedy. Chairman Porter said, as everyone knows by statistics they keep hearing, the majority of vehicular homicide cases are as a result of reckless and intoxicated drivers, and the committee would not want to mitigate the responsibility that those individuals have incurred by good intentions here. Consequently, the committee will go to "plan B" which has not been formulated, but the committee would endeavor to come up with something that works. The committee held HB 255 for that purpose.