Posted on February 04, 2019 in Criminal Law
REPEAL THIS LAW
Homicide by Vehicle – 2nd Degree (HV2).
What do you think of when you hear the name of that law? The term “accident” probably does not come to mind. Yet, the wording of the law spells out just that; an accident.
Imagine that today you are driving to lunch. You are sober and driving carefully. Just before you reach the restaurant, you put your left blinker on and ease into the left lane. Suddenly, you feel a jolt. You just clipped the front of a vehicle. Usually, this would be a minor “fender bender.” However, the other vehicle spins out into the median, rolls over, and kills the driver.
You will live the rest of your life struggling with taking a human life, even though accidental. You will also now become a criminal defendant and charged with HV2. As your ordeal begins, you could be subject to speculation and misinformation that you were drinking. You could also be accused of not caring about the family of the victim because your lawyer advised you not to speak with anyone about the case. You could be judged on your level or remorse.
There are two Vehicular Homicide laws in Georgia:
1. Homicide by Vehicle – 1st (HV1):
This is the law that we are all familiar with because the driver who caused the wreck was intoxicated. You can also be charged with HV1 when a death results from any of the following criminal offenses:
a. DUI – Alcohol, Drugs, or a combination;
b. Reckless Driving;
c. Unlawful Passing a School Bus;
d. Fleeing or Attempting to Elude a Law Enforcement Officer; and/or;
e. Hit and Run
HV1 is classified as a felony in Georgia, which carries a maximum possible sentence of 15 years in prison. While arguable harsh, this is a reasonable law that protects us from dangerous drivers.
2. Homicide by Vehicle – 2nd:
A person is charged with HV2 when a death results due to a violation of any other statute other than the ones specified for HV1. In other words, HV2 applies when a death results from a violation of minor traffic offense. Some examples include but are not limited to:
b. Failure to Maintain Lane;
c. Following Too Closely;
d. Improper Left Turn, etc.
HV2 is considered a misdemeanor in Georgia, which carries a maximum sentence of up to a year in jail and a $1000.00 fine. (Probation is available and is very common in these cases.)
HV2 is unreasonable and should be repealed. It is one of the very few criminal laws that does not require intent to be proven. Intent is not even an issue. The logic here seems to be that making an improper turn is a $200.00 fine. But, if making that exact improper turn at the exact day and time ends up killing someone, that same driver should be charged with a crime.
Does that make sense?
No. The lawyers in our sister state of Alabama, that does not criminalize traffic accidents, tell me how shocked they are that Georgia has a HV2.
In Georgia, I have handled a number of DUI related HV1 cases and misdemeanor HV2 cases. Surprisingly, the HV2 prosecutions can be the most challenging.
This is because, unlike HV1, the client is almost always shocked that he or she will be arrested. The otherwise law-abiding citizen has been pushed into the criminal justice system. A small sample of other negative consequences that can happen to any of us include:
a. Being labelled a “murderer” because of word “Homicide” in the statute;
b. Possibly being subject to the wrath of people who are not aware of the nature of the law; and
c. Generally being treated like a “criminal.”
Let’s look to 2020 to get this law repealed. The collective opinion of our people is extremely important. If you agree with the message in this column, please share, talk, and educate others so that this issue will become part of the political discussion soon enough for next year.
In the meantime, be safe on our roads today and into the future. Jason W. Swindle, Sr. #SwindleLawGroup #wGaCriminalDefense #HV2