H. Michael Steinberg has 42+ years of experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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Vehicular Homicide Cases – Alcohol – Driving and Death – Difficult Cases

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The Charge of Vehicular Homicide – Manslaughter

The most devastating charge facing an individual who has made the unfortunate decision to drink and drive – is the charge of vehicular homicide. Colorado courts punish this crime much more harshly than several decades ago when I first starting prosecuting these cases. Back then – in the 1980’s and 1990’s – probation – possibly some jail and alcohol treatment of course was the “standard sentence.”

Today the sentence is much more harsh. It may be a sentence to probation with jail – usually the maximum of 2 years with work release authorized. Or more typically – in the more aggravated cases – it is a sentence to prison.

Each case presents with unique facts – therefore the sentence will depend on the facts, the lawyers involved- the impact of the victim or victim’s family and friends on the DA and the judge both before sentencing occurs and at the sentencing hearing as well as the other unique circumstances in the individual case.

Today Dallas Cowboys Football player Josh Brent had his vehicular homicide case set for trial on Sept. 23.

As a result of a car wreck on December 8, 2012 that killed his teammate he may ultimately face a jury and hen a judge for sentencing for the charges. The evidence against the player is purported to show that his blood level was more than twice the presumptive legal limit for the crime in the state of Texas… 0.189.

Notably – Brent refused the breath – blood test – but under Texas (and also Colorado law) a blood draw was forcibly taken. Because the single-car crash had the indicia of alcohol intoxication and that crash resulted in a death, Texas authorities were permitted the right to draw his blood against his will. His blood alcohol level was 0.189, the report said. The legal limit in Texas is 0.08.

Presently – Brent has his freedom on a $100,000.00 but must wear an electronic ankle bracelet.

Texas – like most states – has very serious penalties for the crime of vehicular homicide – if convicted he is looking at a sentence up to 20 years in prison.

Aggravating Factors

Furthermore, driving on a suspended license (LINK) and having been convicted of DUI (LINK) in the recent past are considered aggravating factors which will, unfortunately motivate the prosecutor and the media to hype the importance of “sending a message” to the public in this high profile situation.

A Different Kind Of Criminal Mental State

In Texas, as in Colorado, Vehicular Homicide – Manslaughter is not the same as a premeditated murder charge which requires premeditation and an intent to kill. The crime of vehicular homicide is based either on a voluntary but reckless act of driving that leads to another person’s death or it can be based on the voluntarily drinking of alcohol or the taking of drugs which terminates in a fatal accident.

Also in Texas prosecutors may charge Brent with the more severe crime of second degree murder… a crime that is charged in Texas when the unintended killing is the result of gross recklessness.

Blood Alcohol Content (BAC) – .189

As in all 50 states – a blood alcohol test was administered after the crash – the result was .180 – more than double the DUI presumptive limit of .08.

H. Michael’s Take

Colorado Vehicular Assault – Vehicular Homicide Charges and Prosecutions

In Colorado – Vehicular Homicide is a class 3 felony bringing with it a possible sentence of up to 12 years in the Colorado Department of Corrections.

Vehicular homicide can be charged in one of two distinct ways:

1) where a person operates or drives a motor vehicle in a reckless manner, and such conduct causes the death of another person,

or
2) where a person operates or drives a motor vehicle while under the influence of alcohol or drugs, and such conduct causes the death of another person.

With strict liability as the mental state underlying the crime – unless there is an intervening cause of the accident which caused the accident, it is unlikely that Brent will have a defense that would lead to an acquittal. The sentence will most likely result in probation with a term of jail or he may be sentenced to prison.