State v. Lopez

*621Schultheis, C.J.

Fourteen-year-old Nina Lopez drove a car, rolled it and killed one of her passengers. The State charged her with vehicular homicide. Noting that the State failed to show that Ms. Lopez’s lack of a driver’s license proximately caused the accident or proved reckless disregard for the safety of others, the trial court dismissed the charge in a Knapstad hearing. State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986). On appeal, the State argues that Ms. Lopez’s status as an unlicensed minor driver is prima facie evidence that she disregarded the safety of others. We affirm dismissal of the charge.

The following facts are undisputed. On an afternoon in late December 1995, one week before she turned 15, Ms. Lopez drove with three friends on a Yakima County road. The speed limit on the road was 50 miles per hour. At some point the car left the road and rolled two-and-one-half times. One of the passengers, Lisa Orozco, was killed. The other two passengers and Ms. Lopez were seriously injured.

Ms. Lopez was not old enough to have a learner’s permit and had not taken a driver’s education course. Investigations by the police and an accident reconstructionist determined that she was driving between 51 miles per hour and 54 miles per hour, plus or minus five percent, and that she “overcorrected” the car (oversteered to return the car to its lane) twice before it rolled. Officers found no evidence of substance abuse (although Ms. Lopez had marijuana in her coat jacket) and no indication of horseplay or other reckless conduct leading to the accident.

Several months later, the State charged Ms. Lopez with one count of vehicular homicide, RCW 46.61.520. She moved to dismiss pursuant to Knapstad, arguing the State *622had failed to establish a prima facie case of reckless disregard or of proximate cause. On the basis of the above facts, the trial court found that the lack of driver’s training or a driver’s license, without more, was insufficient to prove causation or disregard for the safety of others. The charge was dismissed without prejudice.

On appeal, the State strenuously disagrees with the trial court that the evidence is insufficient to support the elements of vehicular homicide. ROW 46.61.520 defines three distinct means by which vehicular homicide may be committed: (1) driving a vehicle while under the influence of alcohol or drugs; (2) driving in a reckless manner; or (3) driving with disregard for the safety of others. State v. Tang, 77 Wn. App. 644, 646, 893 P.2d 646, review denied, 127 Wn.2d 1017 (1995). Ms. Lopez was charged with driving in a reckless manner and/or with disregard for the safety of others. Pursuant to Knapstad, she moved for dismissal of the charge, alleging there were no material disputed facts and the undisputed facts did not establish a prima facie case of guilt. 107 Wn.2d at 356. Dismissal of the information was proper if no rational trier of fact could have found the essential elements of the crime beyond reasonable doubt. Id. at 349; State v. Dunn, 82 Wn. App. 122, 125, 916 P.2d 952, review denied, 130 Wn.2d 1018 (1996). Based on the evidence presented at the Knapstad hearing, the trial court here found that the State failed to establish any of the essential elements of the charge: recklessness, disregard for safety, or causation. The State argues that the mere fact that Ms. Lopez violated the licensing statutes is negligence per se and establishes a prima facie case of disregard for the safety of others.

We first note that Washington has abolished the doctrine of negligence per se except in certain statutorily defined circumstances not relevant here. RCW 5.40.050.1 Breach of a statutory duty is admissible but not conclusive *623on the issue of negligence. Mathis v. Ammons, 84 Wn. App. 411, 418, 928 P.2d 431 (1996), review denied, 132 Wn.2d 1008 (1997). Disregard for the safety of others is an aggravated kind of negligence “falling short of recklessness but constituting a more serious dereliction than the hundreds of minor oversights and inadvertences encompassed within the term ‘negligence.’ ” State v. Eike, 72 Wn.2d 760, 765-66, 435 P.2d 680 (1967), quoted in State v. May, 68 Wn. App. 491, 496, 843 P.2d 1102 (1993). As noted in Justice Donworth’s dissent to Eike, disregard for the safely of others is conduct more culpable than “driving ‘in such a manner as to endanger or be likely to endanger any persons or property’ (RCW 46.61.525—negligent driving).” Eike, 72 Wn.2d at 779 (Donworth, J., dissenting).

While Ms. Lopez’s failure to acquire a license or driver’s training constitutes more than a minor inadvertence or oversight, this failure—without more—is insufficient to show disregard for the safety of others. The State presented no evidence that Ms. Lopez actually was an inexperienced driver or that she participated in speeding, horseplay or driving under the influence of intoxicants. It is not enough to show that an unlicensed minor without formal driver’s education is likely to endanger persons or property by driving. Some evidence of the defendant’s conscious disregard of that danger is necessary to support vehicular homicide. In short, a minor’s status as an unlicensed driver is not enough to establish beyond reasonable doubt a disregard for the safety of others.

Finally, we note that the trial court erred in concluding that the State failed to establish proximate causation as an essential element of vehicular homicide. Since the 1991 amendment to RCW 46.61.520, proximate cause is not an explicit statutory element of the crime.2 State v. Salas, 127 Wn.2d 173, 184-85, 897 P.2d 1246 (1995). The *624only causal connection the State is required to prove is the connection between the act of driving and the death. State v. Rivas, 126 Wn.2d 443, 451-52, 896 P.2d 57 (1995). Here, it is undisputed that Ms. Orozco’s death was the result of an accident that occurred while Ms. Lopez was driving. Nothing more is required to meet the causation element of vehicular homicide. Rivas, 126 Wn.2d at 451.

Affirmed.

Kurtz J., concurs.

"A breach of a duty imposed by statute, ordinance, or administrative rule shall not be considered negligence per se, but may be considered by the trier of fact as evidence of negligence; however, any breach of duty as provided by stat*623ute, ordinance, or administrative rule relating to electrical fire safety, the use of smoke alarms, or driving while under the influence of intoxicating liquor or any drug, shall be considered negligence per se.” RCW 5.40.050.

The former statute provided as follows:

*624“(1) When the death of any person ensues within three years as a proximate result of injury proximately caused by the driving of any vehicle by any person while under the influence of intoxicating liquor or any drug, . . . or by the operation of any vehicle in a reckless manner or with disregard for the safety of others, the person so operating such vehicle is guilty of vehicular homicide.” Laws of 1983, ch. 164, § 1, p. 719.

The 1991 amendment to RCW 46.61.520 now provides:

“(1) When the death of any person ensues within three years as a proximate result of injury proximately caused by the driving of any vehicle by any person, the driver is guilty of vehicular homicide if the driver was operating a motor vehicle:

“(a) While under the influence of intoxicating liquor or any drug . . . ; or

“(b) In a reckless manner; or

“(c) With disregard for the safety of others.”