Here are the facts. On the morning of September 27, 2006, a man was driving in downtown Seattle minding his own business. The sun was out, and the shadows were long across the street. The guy was traveling southbound, waiting for traffic to clear that was coming at him so he could make a left turn. As the last car crossed in front of him, he began making his turn. The problem, however, was that a lady on a bicycle was still traveling down the northbound lane, toward the guy. And for whatever reason, he didn't see her until she was almost right on top of his van.
The bicycle rider struck the man's van and was thrown to the ground. She was wearing a helmet, but that did not provide enough protection. The bicycle rider suffered head injuries, and died later that day. The man was tested for alcohol and drugs and showed no signs of impairment. This was truly simply a horrific accident. And King County prosecutors saw it that way too.
Whether a King County prosecutor or a Seattle traffic attorney, the law is the law. In this case, King County only had one option to pursue with the driver of the van. Filing no charges. The man failed to yield to oncoming traffic, a traffic infraction, and nothing more. The only possible criminal violation out there was vehicular homicide, and that requires impairment by drugs or alcohol. So, King County did nothing.
But not the City of Seattle. They, contrary to State law, had recently enacted a law criminalizing traffic infraction if they lead to serious bodily injury. And, despite the fact that the driver reached a settlement with the family of the bicycle rider and appeared to be truly remorseful, the City of Seattle charged him with a violation of the city's criminal code for causing serious injury.
Now, you wouldn't necessarily know this because you aren't a Seattle traffic attorney but traffic infractions, by their very nature, are not criminal acts. The legislature specifically decriminalized traffic infractions in order to speed up the process and eliminate the requirement for legal representation. And this is clearly a traffic infraction that has been turned into a criminal act. So, the driver's traffic attorney moved to dismiss the charges on the basis that the statute was illegal. To no one's surprise, the Seattle municipal judge who heard the case upheld the statute and found the driver guilty.
When the man appealed the ruling to the King County District Court, a neutral body without a dog in the fight, they struck down the ordinance, reversed the conviction, and declared the statute invalid because of the legislatures specific decriminalization of traffic infractions (except those specifically to remain criminal law violations). And the City, unhappy with the result, asked the Washington State Court of Appeals to step in and put in their two cents.
And, as you might expect, the court of appeals upheld the District Court's ruling that the statute was invalid. Here's a little more in depth analysis on the statute and the requirements of criminalized traffic infractions:
The legislature decriminalized much of the traffic code in response to State v. Hehman, 90 Wn.2d 45, 578 P.2d 527 (1978). With enumerated exceptions for certain statutes codified in Title 46 of the Revised Code of Washington, or equivalent regulations or local laws, "any act" that constitutes a traffic violation may not be classified as a criminal offense.
Failure to perform any act required or the performance of
any act prohibited by this title or an equivalent administrative
regulation or local law, ordinance, regulation, or resolution relating
to traffic including parking, standing, stopping, and pedestrian
offenses, is designated as a traffic infraction and may not be
classified as a criminal offense, except for an offense contained in
the following provisions of this title or a violation of an equivalent
administrative regulation or local law, ordinance, regulation, or
resolution. RCW 46.63.020.
There are at present some 60 enumerated exceptions to RCW 46.63.020 within Title 46. Two are the crimes of vehicular assault and vehicular homicide. See RCW 46.63.020 (40) and (41). Also included among the exceptions are statutes that forbid driving various types of vehicles while intoxicated, driving without a valid operator's license, driving with a suspended license, circumventing an ignition interlock device, transporting dangerous articles, reckless endangerment of roadway workers, racing vehicles on the highway, and many others.
There is no exception for the traffic code violation of failing to yield the right of way when turning left. This act is prohibited by RCW 46.61.185: "The driver of a vehicle intending to turn to the left within an intersection or into an alley, private road, or driveway shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard." See also SMC 11.55.080 equivalent Seattle ordinance). Because RCW 46.61.185 is not among the enumerated exceptions to RCW 46.63.020, the superior court determined that the new Seattle assault ordinance, SMC 12A.06.010 (B), is in conflict with RCW 46.63.020:
SMC 12A.06.010(B) incorporates the entire chapter of RCW
46.61 violations and holds that a violation of one with a bad result
(serious bodily injury or death) is a new type of traffic crime. Since
SMC 12A.06.010(B) is a new traffic crime and it is not listed in or
exempted by RCW 46.63.020, it violates the command of that
statute and is therefore, invalid.
The city argues that an "act" that violates the Seattle assault ordinance is more than just a traffic infraction; it is a traffic infraction plus the result of death or substantial bodily harm. The city's argument refers to the term "act" as it is used in the statute: "Failure to perform any act required or the performance of any act prohibited by this title ... may not be classified as a criminal offense."
Plainly, a city may not criminalize the "act" by which a person violates a provision of Title 46 if the violation is not listed among the 60 exceptions to RCW 46.63.020. But according to the city, the statute does not forbid an ordinance that criminalizes the act when the act results in a specified harm. The city reasons that Wilson's "act" was failing to yield the right of way and thereby causing a death, and that such an "act" is not prohibited by Title 46.
Serious scholarly attention has been devoted to studying whether the term "act", when used in the definition of crimes, should include not only a person's voluntary movement but also the consequences of that movement. The city touches the surface of this discussion by offering a brief quotation from 1 W. LaFave, Substantive Criminal Law § 6.1(a), at 422 (2nd Ed. 2003): "The view has also been taken that an act includes three constituent parts: (1) its origin, such as bodily activity; (2) certain surrounding circumstances; and (3) certain consequences." (Emphasis added.) The city contends this broadly inclusive definition of "act" should be adopted in interpreting RCW 46.63.020. But the city's reliance on the quotation is misplaced. In context, it is clear that LaFave states the broad definition of "act" only to disapprove of it. According to LaFave, modern criminal theory favors a narrow definition of "act" as a voluntary bodily movement. To define "act" in a way that encompasses circumstances and consequences "presents a serious problem in determining the termination point of one's acts". LaFave, Substantive Criminal Law § 6.1(a), at 423.
Yielding the right of way is an act required by Title 46; or stated alternatively, turning left in front of a bicycle or other type of vehicle is an act prohibited by Title 46. However stated, Wilson's act -- whatever its consequence -- is only a traffic infraction under state law unless accompanied by the additional elements that would make it vehicular assault or vehicular homicide or driving while intoxicated or one of the other criminal offenses recognized in the exceptions under RCW 46.63.020. Seattle cannot classify failure to yield the right of way as a criminal offense merely by defining the "act"in a way that encompasses a particular result of the act.
You can read the entire opinion here.
What does this mean for the guy driving the van? He can now move on with his life, he is not a criminal, and he can try his best to put this whole episode behind him.
What happens next for the statute? That is an interesting question. As a Seattle traffic attorney I found it interesting (although not uncommon) that the Court of Appeals through pointing out the errors of the language of the statute inadvertently provided some powerful information on what might be done to create a valid statute. We'll just have to wait and see if their suggestions are incorporated into a new law (though in the end the City of Seattle will never be able to do what they truly want - take a simple traffic infraction like failing to yield, when there is no evidence of recklessness or other criminal propensity, and criminalize it just because a serious injury occurred).
