What criminal charges could be made in this situation?

[hoosierdoc]

I'm brainstorming for a plot idea in a book and need some help on possible charges in Indiana.

A person is driving a car and strikes a pedestrian on the side of the road. The driver clearly swerved out of the traffic lane and hit the pedestrian. They claim they sneezed at it caused the wheel to jerk. what would a reasonable charge be for that? Involuntary manslaughter?

And secondly, what if the driver swerved because they were recording an Instagram video and not watching the road when they hit the person? Seems like it would be a significantly higher charge, right? I'm seeing reckless homicide here.


is there a charge less than involuntary manslaughter if it truly was an accident or a medical issue that led to the death?

 

[Ark]

Involuntary manslaughter and reckless homicide carry the same penalties in Indiana. The process and requirements for proving either are extremely similar. The Indiana Code doesn't provide much help, it literally says "A person who recklessly kills another human being commits reckless homicide" and that's it. Hooray for tautologies.

The distinction seems to be that involuntary manslaughter requires an unlawful act to be taking place, while reckless homicide allows you to be charged for reckless behavior resulting in death that was not in violation of any written law.

Involuntary manslaughter is the usual go-to for drunk driving cases, but from my understanding it might actually be better for the prosecutor to charge under reckless homicide. There's more leeway in what they have to prove. We do have a cell phone driving law that could be invoked in the same sort of manner that our DUI law is invoked for an involuntary manslaughter case. But a dumbass clowning on Instagram while driving seems like something you could convince a jury constitutes all-around reckless behavior resulting in death without having to split hairs on when and where the specific criminal violation happened.

I don't think you can get up to more serious charges, involuntary manslaughter is pretty much the ceiling before you start needing either direct violence (voluntary manslaughter) or malice aforethought (murder).

Not sure about lower charges, except for the traffic law. Civil liability obviously applies. I don't know if you can apply charges for merely injuring someone, when in reality they died.

 

[Farmerjon]

"I don't think you can get up to more serious charges, involuntary manslaughter is pretty much the ceiling before you start needing either direct violence (voluntary manslaughter) or malice aforethought (murder). " Except if they are a YouTube and said on the camera, watch this person fly!

The person that murdered my grandfather as he lay sleeping in bed was charged with premeditated murder as the trooper felt the hood of her car and it was warm, either she needed ammo or needed help loading the gun. She stood at the foot of the bed and put 15 in his heart.

 

[jsharmon7]

Intent and driving behavior would be the key. In the first scenario, probably wouldn’t see any criminal charges filed. The person was driving in a reasonable manner and something happened. Pothole, sneeze, glare, whatever. They weren’t behaving recklessly and weren’t intentionally aiming for the pedestrian. Fatal accidents happen all the time without charges filed.

The second scenario is more complicated. You’d have to show evidence that a reasonable person would know filming a video on their phone was reckless. Just an infraction violation may not be enough. So if I’m driving 5mph over the limit and kill someone, I probably wouldn’t face charges as most people would say I couldn’t reasonably expect my driving behavior to recklessly endanger anyone. If I’m going 50mph over the limit, I’d probably get charged with reckless homicide. If a prosecutor could argue that filming a video while driving was reckless, then I think reckless homicide would be the charge. People who pass stopped school buses and kill kids usually get charged with that one.

I am not a lawyer, just someone who presented cases to them for a couple years.

Edit:

Here is a somewhat related case:

Pedestrian Killed

 

[HoughMade]

Intent and driving behavior would be the key. In the first scenario, probably wouldn’t see any criminal charges filed. The person was driving in a reasonable manner and something happened. Pothole, sneeze, glare, whatever. They weren’t behaving recklessly and weren’t intentionally aiming for the pedestrian. Fatal accidents happen all the time without charges filed.

The second scenario is more complicated. You’d have to show evidence that a reasonable person would know filming a video on their phone was reckless. Just an infraction violation may not be enough. So if I’m driving 5mph over the limit and kill someone, I probably wouldn’t face charges as most people would say I couldn’t reasonably expect my driving behavior to recklessly endanger anyone. If I’m going 50mph over the limit, I’d probably get charged with reckless homicide. If a prosecutor could argue that filming a video while driving was reckless, then I think reckless homicide would be the charge. People who passed stopped school buses and kill kids usually get charged with that one.

I am not a lawyer, just someone who presented cases to them for a couple years.

I think you are on point....but are we just taking the word of the driver for the sneeze?

I mean, the State would have to prove the level of mens rea, that is, the mindset, whether negligent, reckless, intentional, etc...but the primary way of proving intent is the probable and natural results of the actions taken. No one has to say: " I intend to do X". If they do it, there is presumption they intended to do it, but that is a rebuttable presumption that could be refuted by the "sneeze" account (which would require a person to waive their right to remain silent). If there was a reason a person my want that person dead or injured...

Beyond that, what if the person has a medical condition known to them that affects their driving, yet they drive? That can form negligence or recklessness. It's all very fact specific.

Anyhoo- here are some statutes that may apply, keeping in mind that if you kill someone while committing another crime, there are additional provisions that may apply which I have not included:

Murder- Ind. Code § 35-42-1-1

A person who:
(1) knowingly or intentionally kills another human being;
(2) kills another human being while committing or attempting to commit…or carjacking;
…commits murder, a felony.

Voluntary Manslaughter- Ind. Code § 35-42-1-3

(a) A person who knowingly or intentionally:
(1) kills another human being; or
(2) except as provided in section 6.5 [IC 35-42-1-6.5] of this chapter, kills a fetus in any stage of development;
while acting under sudden heat commits voluntary manslaughter, a Level 2 felony.
(b) The existence of sudden heat is a mitigating factor that reduces what otherwise would be murder under section 1(1) [IC 35-42-1-1(1)] of this chapter to voluntary manslaughter.

Involuntary Manslaughter- Ind. Code § 35-42-1-4

(a) As used in this section, “fetus” means a fetus in any stage of development.
(b) A person who kills another human being while committing or attempting to commit:
(1) a Level 5 or Level 6 felony that inherently poses a risk of serious bodily injury;
(2) a Class A misdemeanor that inherently poses a risk of serious bodily injury; or
(3) battery;

commits involuntary manslaughter, a Level 5 felony.

(c) Except as provided in section 6.5 [IC 35-42-1-6.5] of this chapter, a person who kills a fetus while committing or attempting to commit:
(1) a Level 5 or Level 6 felony that inherently poses a risk of serious bodily injury;
(2) a Class A misdemeanor that inherently poses a risk of serious bodily injury;
(3) a battery offense included in IC 35-42-2; or
(4) a violation of IC 9-30-5-1 through IC 9-30-5-5 (operating a vehicle while intoxicated);

commits involuntary manslaughter, a Level 5 felony.

Reckless Homicide- Ind. Code § 35-42-1-5

A person who recklessly kills another human being commits reckless homicide, a Level 5 felony.

Causing death or catastrophic injury of another person when operating motor vehicle- Ind. Code § 9-30-5-5

(a) A person who causes the death or catastrophic injury of another person when operating a vehicle:
(1) with an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol per:
(A) one hundred (100) milliliters of the person’s blood; or
(B) two hundred ten (210) liters of the person’s breath;

(2) with a controlled substance listed in schedule I or II of IC 35-48-2 or its metabolite in the person’s blood; or

(3) while intoxicated;

commits a Level 4 felony.

 

[hoosierdoc]

Thanks everyone. It's going to be a young rich girl who drifts over and hits someone. Admits to looking at her phone while driving and shooting the video, then when her dad shows up with a lawyer she changes her tune. ER doc is stuck in the middle with privacy concerns and threat of a huge civil lawsuit vs someone getting away with reckless homicide or something.

Sounds like maybe i need to make the driver appear more reckless.

 

[jsharmon7]

I’m adding “technical adviser to NYT best-selling author” on my resume.

 

[DoggyDaddy]

I’m adding “technical adviser to NYT best-selling author” on my resume.

Ah yeah... hoosierdoc... we knew him when...

 

[jsharmon7]

Ah yeah... hoosierdoc... we knew him when...

Back when he was just a doctor, saving lives. He finally made something of himself.

 

[DoggyDaddy]

Back when he was just a doctor, saving lives. He finally made something of himself.

All kidding aside, I've enjoyed reading his stories that he's posted.

 

[HoughMade]

Thanks everyone. It's going to be a young rich girl who drifts over and hits someone. Admits to looking at her phone while driving and shooting the video, then when her dad shows up with a lawyer she changes her tune. ER doc is stuck in the middle with privacy concerns and threat of a huge civil lawsuit vs someone getting away with reckless homicide or something.

Sounds like maybe i need to make the driver appear more reckless.

Make her somewhat high on something that's legal