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STATE v. TRUDELL4/29/1988
The opinion of the court was delivered by
This is an appeal by the State pursuant to K.S.A. 1987 Supp. 22-3602(b)(1) from the district court's dismissal, upon defendant Stephen Trudell's motion, of one count of aggravated vehicular homicide, K.S.A. 1987 Supp. 21-3405a.
This criminal prosecution grew out of the following facts: On the afternoon of June 29, 1986, Stephen Trudell was driving his car at a high rate of speed, trying to elude a pursuer with whom Trudell had fought after the pursuer and others had ejected him
from a Wichita private club. In his haste, Trudell drove into the rear end of a pickup truck driven by Rickie Brixius, in which Patricia Brixius was a passenger. The collision caused the truck to smash into a light pole, propelling Patricia, who was approximately 25 weeks pregnant, from the truck. She was taken to a hospital for examination. The hospital staff discovered bruises on her abdomen. A fetal heartbeat was found at the time of the first examination, but all fetal activity had stopped by nightfall. After a stillborn birth of the fetus on July 2, 1986, it was determined that abnormal trauma to Patricia's stomach had torn the placenta, blocking the blood supply to the fetus and resulting in its death. There was medical testimony the fetus had been viable before the accident.
Trudell was found to have a .208% alcohol level in his blood. He stipulates for the purpose of his motion to dismiss that there is a causal relationship between his operation of the motor vehicle while under the influence of alcohol and the death of the fetus.
Trudell was charged with one count of driving under the influence , a class A misdemeanor, K.S.A. 1987 Supp. 8-1567; and one count of aggravated vehicular homicide, a class E felony, K.S.A. 1987 Supp. 21-3405a.
Trudell moved for dismissal of the aggravated vehicular homicide count on the ground the facts did not support a cause of action under which he could be legally convicted. The district court heard the motion on March 6, 1987, and took it under advisement. The preliminary hearing was scheduled for March 13, 1987. Since the court had not reached a decision on the motion to dismiss by that date, it continued the preliminary hearing. The State objected to a continuation of the preliminary hearing and asked that the motion not be decided until after the preliminary hearing. The court overruled the objection on the grounds a preliminary hearing is a right accorded a defendant and not the State.
On April 2, 1987, Trudell waived his preliminary hearing. On the same day, the court dismissed the aggravated vehicular homicide charge with prejudice. The court then granted the State's motion to dismiss the driving under the influence charge without prejudice. The State appealed the dismissal of the aggravated vehicular homicide count.
The issue on appeal is whether the district court erred in ruling a viable fetus is not a "human being" within the meaning of the aggravated vehicular homicide statute, K.S.A. 1987 Supp. 21-3405a, which reads:
"(1) Aggravated vehicular homicide is the unintentional killing of a human being, without malice, which is done while committing a violation of K.S.A. 8-1566, 8-1567 or 8-1568, and amendments thereto, or the ordinance of a city which prohibits any of the acts prohibited by those statutes."
Under the common law, a human fetus was not a human being. Note, Judicial Recognition of Feticide: Usurping the Power of the Legislature?, 24 J. Fam. L. 43, 45 (1985-86). American case law accepted the common-law rule that the killing of a fetus was not criminal homicide unless it was born
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