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zoltron

About a month ago, my niece was driving home from work at a
hospital that's about 60 miles away (she's an RN) after a 12 hr.
shift. On the way home dog tired, she fell asleep at the wheel,
crossed the center line (country road/55 mph limit) and hit another vehicle head-on killing the driver (passenger OK). She is
very small and was asleep, so the impact didn't hurt her either.
Anyway, the police made her take a drug test and it came back
hot for pain-killers (Lorcet 10) that the dentist prescribed. So the
charge went from Involuntary to Voluntary Manslaughter. She is
completely freaked & extremely worried (with every right). So,
Niteshift, what in your opinion will be the consequences? It is her
1st offense for anything and was wondering if she'd get years in
prison? Huge fine? I'm sure there'll be a civil suit by the family of
the deceased, but she's worried about jail...what do you think?
Input from anyone would be appreciated.

 

Proud_Canadian

voluntary manslaughter has a jail term of 1-20 years in some states, and a term of 3-20 years in other states.

it's a class A felony. often used as a plea sentence for homicde 2 or 3

what state did it happen in?

i don't see how this can be justified as voluntary manslaughter.

"Voluntary manslaughter occurs when a person intentionally kills another person after "adequate provocation"; that is, there has been action that was sufficient to incite an "ordinary person" to "sudden and intense passion" such that s/he loses self control. It should be noted that the time between provocation and the killing should not be long enough for the passion to have cooled off.

In most states, "adequate provocation" is defined to be only situations in which there is a threat of deadly force, or in which a person finds his/her spouse in bed with another person. Verbal threats are usually not considered adequate provocation."



I don't think I could live with myself if I had anything to do with the death of another life.

goldberry

When you get prescription drugs your doctor must tell you whether you're allowed to operate heavy machinery (the medication will also have that info in written form).

Sounds like they upgraded the charge to voluntary because the death was caused by her decision to operate a car when she was instructed not to.

__________________
"Is our children learning?" George W. Bush

zoltron

The one thing, though, is she hadn't taken any pain medicine for
about 48 hrs....it was just still in her system from 2 days prior &
the state it happened was NC.

goldberry

that's definitely something she should discuss with her lawyer

 

Niteshift

It sounds very tragic and not totally unheard of unfortunately.

Driving fatigued is often as dangerous as driving drunk. That's why commercial vehicle drivers are limited in the amount of hours they are allowed to drive. Same with pilots. It has been theorized that nearly as many people are killed by tired drivers as are killed by drunk drivers.

And driving under the influence of some prescription drugs is also a dangerous action. No need to really explain that one further.

Regarding the charge......... often, a prosecutor will fire at the higher possible charge, because the courts will almost always let them downgrade a charge, but sometimes fight with them if they try to upgrade one.

This is done for 2 reasons. One is plea bargaining. It's just like buying a car. The sellor is the prosecutor (he's selling jail time). The buyer is your niece. Then the negotiations begin.

The other reason is called "lesser included offenses". If I file a charge of murder, for example, aggravated battery is considered a lesser included offense, since there had to be an agg battery to commit the murder. Some states allow a jury to find a person not guilty (jurys do not find people innocent. They find them not guilty) of voluntary manslaughter, but might find them guilty of the lesser included offense of involuntary manslaughter.

It's sort of an insurance policy for the prosecutor. You might not like it, just telling you the facts.

The first question is are you CERTAIN it's voluntary manslaughter and not vehicular manslaughter? Manslaughter usually requires a DIRECT action.

I looked up the NC statutes on the topic:

(a1)Felony Death by Vehicle. - A person commits the offense
of felony death by vehicle if he unintentionally causes the
death of another person while engaged in the offense of impaired
driving under G.S. 20-138.1 or G.S. 20-138.2 and commission of
that offense is the proximate cause of the death.

Now that sounds pretty much like what happened. Unintentional and impaired.

The lesser charge is this:

(a2)Misdemeanor Death by Vehicle. - A person commits the
offense of misdemeanor death by vehicle if he unintentionally
causes the death of another person while engaged in the
violation of any State law or local ordinance applying to the
operation or use of a vehicle or to the regulation of traffic,
other than impaired driving under G.S. 20-138.1, and commission
of that violation is the proximate cause of the death.

that would be a lesser included charge.

The other provision in that section is this: (c) No Double Prosecutions. - No person who has been placed
in jeopardy upon a charge of death by vehicle may be prosecuted
for the offense of manslaughter arising out of the same death;
and no person who has been placed in jeopardy upon a charge of
manslaughter may be prosecuted for death by vehicle arising out
of the same death.

That simply means you can't be charged with death by vehicle (vehicular manslaughter) and manslaughter for the same death.

To read this properly, you have to look up G.S. 20-138 to see if the element of proof for the impaired driving is there.

First you have to look up the definition in 20-4.01

14a) Impairing Substance. - Alcohol, controlled
substance under Chapter 90 of the General Statutes,
any other drug or psychoactive substance capable of
impairing a person's physical or mental faculties,
or any combination of these substances.

20-138.1. Impaired driving.
(a)Offense. - A person commits the offense of impaired
driving if he drives any vehicle upon any highway, any street,
or any public vehicular area within this State:
(1) While under the influence of an impairing
substance;

That's actually listed BEFORE alcohol is specifically.

Then it's followed by this:
(b) Defense Precluded. - The fact that a person charged with
violating this section is or has been legally entitled to use
alcohol or a drug is not a defense to a charge under this
section.

That's VERY important. This eliminates her ability to defend herself by saying "the doctor gave it to me". The ONLY defense she has left is to prove that she was not under the influence of the drug. Unfortunately, her fatigued state hurts that defense, since it contributes to her suceptibility to the affects of the drug.


What is she looking at?

(1) If that maximum punishment is more than six months
imprisonment, it is a Class 1 misdemeanor;
The amount
of the fine for a Class 1 misdemeanor and a Class A1 misdemeanor
is in the discretion of the court.


The good news is that the guidelines for a Class 1 with no priors is 1-45 days and community punishment (hourse arrest without electronic monitoring) is allowed.

Then answer for the felony convition is much more complicated and requires knowing a lot more about her than I do.


My advice: Don't just get an attorney, get one that SPECIALIZES in impaired driving cases. Not a guy from the phone book that says he defends DUI's. Ask for a list of his qualifications (they have to give it to you on request) and see how much of his continuing legal education (CLE's) credits are based on impaired driving training.

__________________
A burning desire for social justice is never a substitute for knowing what you're talking about. -Thomas Sowell

Sometimes the light at the end of the tunnel is muzzle flash.

zoltron

I was hoping you'd read this thread, NS, and I (and my niece) do
appreciate your time & effort you put in to give advice on things
like this...you have eased her mind, to a certain extent, as she had all these preconceived ideas going through her head. You
really go above & beyond by looking things up for people and set-
ting them straight...again, thank you & I will print your reply for
my niece to read.

Niteshift

The criminal battle is only 1 of 3 battles she will face.

It's a pretty good bet that there will also be a civil suit by the decedents family. Again, keep an attorney of your own. The insurance companies attorney is NOT working for you.

The third battle is the one that will last the longest. Her actions, even though they were accidental, caused the death of another human being. It is not always something you deal with in the most logical manner. Some people never get over that. Others cope better. With her being in a profession focussed on saving lives, it might hit her a little harder than some others.

Watch her for changes in her personality, work habits, eating habits, sleep patterns etc. There are many warning signs. She might ignore them, so her family has to recognize them for her.

One of the worst potential ones, in my opinion, is "survivor guilt", if she starts wishing it was her killed and not the other person.

Having a tough time dealing is normal, but please, please emphasize to her that it is not weak or anything to be ashamed of to seek help like counseling.

zoltron

Yeah, she has been trying to keep somewhat composed through
all this, but then she'll be talking with my wife (aunt) and, all of a
sudden, she'll just break down in tears, which is understandable.
I told my nephew (her husband) to keep an eye on her and to let
us know if there is anything we can do...but I think in the long run
she's going to need some kind of counseling.

bigpeanuts

I can't really help but about a year ago I killed a pedestrian that was j-walking across the street. A plus on her side is that she didn't witness what happened. I relive what happened everyday of my life and can picture the look on the guys face when my grill hit him in the head. They impounded my car for about a month to investigate and I wasn't charged with anything, but my ins. company cut the family a check for between 25-50 grand I believe (they won't tell us) Good luck with everything, everyone handles it differently. Frankly, its just one of the reasons that I want to die so just stay aware but let her have her space. Taking someones life really torments the psyche