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State v. Bailey4/6/2005
In its brief to this court, the state also presupposes that the lack of evasive action on the part of the defendant was due solely to her intoxication. But, the Archer court observed that the defendant's movement, the left turn, meant that his attention was focused elsewhere, specifically, on the service station into which he was intending to drive. Id. In the instant case, the defendant's attention was likely focused elsewhere, specifically, on Mr. Hammett's pick-up truck, the vehicle she was moving to pass. The Archer court found that under the specific facts of the case, the conclusion that the defendant was at fault was unreasonable. Id.
Additional jurisprudence supports the defendant's assertion that the circumstances of the accident mean that a rational juror would not have found proof of guilt beyond a reasonable doubt. In Bordelon v. State, Department of Highways, 253 So.2d 677 (La.App. 1 Cir.), writ ref'd, 260 La. 18, 254 So.2d 619 (1971), the driver-defendant in a suit for civil recovery for the death of his passenger was found to be not liable. The accident occurred at night on a highway and the defendant was driving between sixty and sixty-five miles per hour. Id. The defendant diverted his attention momentarily when he changed lanes. When he again looked straight ahead, he saw a dead cow lying in his lane of travel. Id. He swerved off the road and into a tree. Id. That court quoted Kirk v. United Gas Public Service Co., 185 La. 580, 585-86, 170 So. 1, 3 (1936), where the supreme court stated:
The rule that a motorist traveling on the public highways after dark or during a rainstorm, fog, or other abnormal condition, which prevents him seeing ahead, except imperfectly, and for a short time and distance, must guard against striking objects in the road with which he may be suddenly confronted, constitutes an exception to the general rule that a motorist may assume that the road is safe for travel even at night. But that exception to the general rule is itself subject to the exception that a motorist traveling by night is not charged with the duty of guarding against striking an unexpected or unusual obstruction, which he had no reason to anticipate he would encounter on the highway. Bordelon, 253 So.2d at 678-79 (emphasis added).
The first circuit applied the rule from Kirk to a case involving a rear-end collision and stated that an unlighted vehicle, whether moving, stopped or parked upon a highway, constitutes an unexpected or unusual obstruction that would not reasonably be anticipated. Shively v. Hare, 189 So.2d 12 (La.App. 1 Cir. 1966).
In contrast to Bordelon and Shively, this court ruled in Fontenot v. Continental Casualty Co., 175 So.2d 853 (La.App. 3 Cir. 1965), that a driver-defendant was liable to a passenger for injuries occurring from an accident when the driver swerved to avoid an unforeseen obstacle in the road. That driver swerved to avoid a cow standing in his lane of travel. However, the facts of Fontentot do not suggest that the defendant was traveling on a busy highway, nor that his attention was reasonably diverted from his path of travel. The accident circumstances in the instant case more closely parallel those circumstances in Archer and in Bordelon.
Accordingly, we find that the circumstances of the accident precluded the state from proving beyond a reasonable doubt that the intoxication of the defendant combined with her operation of the vehicle to cause Ms. Ingram's death. Rather, the accident was unavoidable, and, under Taylor, the defendant may not be held criminally liable simply due to the coincidental fact that the fatal accident occurred while she was driving a vehicle under the influence of alcohol.
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