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State v. Bailey4/6/2005
offender engaged in the operation of, or in actual physical control of, any motor vehicle, aircraft, watercraft, or other means of conveyance, whether or not the offender had the intent to cause death or great bodily harm, whenever any of the following conditions exists:
(1) The operator is under the influence of alcoholic beverages as determined by chemical tests administered under the provisions of R.S. 32:662.
(2) The operator's blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood.
As another circuit has explained:
In State v. Taylor, 463 So.2d 1274, 1275 (La.1985), the Louisiana Supreme Court concluded that, under the vehicular homicide statute, "the state . . . must prove that an offender's unlawful blood alcohol concentration combined with his operation of a vehicle to cause the death of a human being." See also State v. Ritchie, 590 So.2d 1139, 1149 (La.1991) (on rehearing). It is insufficient for the state to prove merely that the alcohol consumption "coincides" with the accident. Taylor, 463 So.2d at 1275. The vehicular homicide statute does not impose criminal liability based solely on the coincidental fact that the fatal accident occurred (without fault on the part of the accused) while the accused was operating a vehicle under the influence of alcohol. Ritchie, 590 So.2d at 1149. See State v. Archer, 619 So.2d 1071, 1074 (La.App. 1st Cir.), writ denied, 626 So.2d 1178 (La.1993). Causation is a question of fact which should be considered in light of the totality of circumstances surrounding the ultimate harm and its relation to the actor's conduct. State v. Kalathakis, 563 So.2d 228, 231 (La.1990). State v. Trahan, p. 11 (La.App. 1 Cir. 5/20/94), 637 So.2d 694, 701.
In her brief to this court, the defendant argues that the victim was stopped in the "fast lane" of the highway at night and that the lights of the victim's car were either inoperable or were dimmed. The defendant concludes that these dangerous conditions made the accident unavoidable. The defendant argues that these conditions, therefore, rather than the actions or the intoxication of the defendant, caused the death of the victim.
As stated above, the vehicular homicide statute does not impose criminal liability based solely on the coincidental fact that the fatal accident occurred while the accused was operating a vehicle under the influence of alcohol. See State v. Ritchie, 590 So.2d 1139 (La.1991) (on rehearing). Also, " ausation is a question of fact which has to be considered in the light of the totality of circumstances surrounding the ultimate harm and its relation to the actor's conduct." State v. Kalathakis, 563 So.2d 228, 231 (La.1990). We find, after consideration of the totality of circumstances, that the evidence was insufficient to meet the standard of proof beyond a reasonable doubt that it was the defendant's intoxication, combined with her operation of her car, that caused the victim's death. See State v. Taylor, 463 So.2d 1274, 1275 (La.1985).
Four of the trial witnesses saw the accident occur and testified about the positioning and visibility of the victim's car at the time of the accident, and each testified that the victim's car was precariously positioned. Butch Hammett was driving his Ford F-150 in the right-hand lane of the highway at approximately fifty-five to sixty miles per hour in the same direction of travel as the defendant and in front of her car. Mr. Hammett testified as to what he saw:
Q: Were you aware of a vehicle coming up behind you?
A: Well, I was after my wife said there's a vehicle in the left hand lane sto
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