This fall a criminal conviction was reversed. Angela Stracar had been found guilty of vehicular homicide from an accident that occurred near Boca Isles off Cain Boulevard. The Fourth District Court of Appeal unanimously found that what happened (or what was proven in court) was not enough to count as homicide. The decision is here: Stracar pdf. For some reason the October decision caught media attention this week.
Below are some excerpts from the decision with some explanation.
Appellant, Angela Stracar, was convicted following a jury trial of two counts of vehicular homicide. She challenges those convictions, arguing that the trial court erred in denying her motions for judgment of acquittal on the basis that the State’s evidence failed to show that she was driving in a reckless manner sufficient to prove the charges. We agree, and reverse.
First, it’s important to see what she was convicted of (the jury could not reach a verdict on DUI manslaughter, and the prosecutor dropped those charges) and what exactly she was challenging on the appeal. She contended, and the court agreed, that the evidence was not sufficient to show she was driving in a reckless manner. So it’s about that limited issue. It’s not about whether she was impaired by drugs (since those charges were dropped), whether the accident caused the deaths, whether she was the driver, nor about whether the prosecution used improper evidence.
Here’s the relevant language of the statute:
782.071 Vehicular homicide.—“Vehicular homicide” is the killing of a human being, or the killing of a viable fetus by any injury to the mother, caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another.
So the question is whether she was driving “in a reckless manner.”
[H]er blood was drawn approximately three hours after the crash. Test results showed her blood alcohol concentration was less than .02%, THC from marijuana use at some undetermined time, oxycodone at a potentially therapeutic level, and Xanax within therapeutic levels. Although there was expert testimony that the central nervous system depressants found in appellant’s blood could have had an additive effect to impair her driving, there was no evidence of any unsafe or erratic driving at any point up to the time of the accident.
For starters notice the court saw no evidence of unsafe or erratic driving. Typical reckless driving might include excessive speed, weaving in and out of traffic, racing, etc.
On the drug issue, one key piece of language here is that it sounds like the expert did not offer a conclusive opinion, saying only that the depressants “could” have had an effect.
Stracar’s BAC was less than .02. That’s low. Even with the three hour gap, and assuming her BAC dropped by 0.015 per hour, her BAC at the time of the accident would have been less than .065, well under the legal limit. They found “THC” in her blood. The decision doesn’t give numbers but we found them in the “probable cause” report:
Most of the numbers seem unremarkable. The Delta-9 THC and Oxymorphone levels being “less than 2.5 ng/ml” suggests they were not enough to give a precise number, and that they were no longer having any effect on her system. Despite popular misperceptions, the science is unclear as to whether marijuana actually impairs driving. The BAC, as mentioned above, is low. The Alprazolam level of 13 ng/ml is also at the low end of the therapeutic range (from 10 to 50 ng/ml).
However, the Oxycodone level of 147 ng/ml is actually higher than the therapeutic range (10-100 ng/ml) and approaches toxic levels (over 200 ng/ml). See ToxWiki for more. It’s surprising that the expert was not more definitive that this level of Oxycodone would impair driving, especially in combination with some alcohol and other substances in the blood. There can be many reasons for this. Perhaps the prosecutors were not careful, the witness had a bad day, the Court is not describing the testimony fully, or I’m just wrong in my interpretation of that number.
Next the Court reviews the issue of “recklessness” and compares the evidence to past cases:
The evidence presented at trial showed that appellant’s actions, while certainly negligent, did not rise to the level of recklessness sufficient to sustain the convictions for vehicular homicide. See, e.g., State v. Esposito, 642 So. 2d 25, 26-27 (Fla. 4th DCA 1994) (reversing conviction for vehicular homicide where evidence at trial merely demonstrated negligence with no evidence of intoxication, speeding, erratic driving, or failure to observe traffic regulations); Berube, 6 So. 3d 624 (reversing vehicular homicide conviction where driver executed improper left turn across oncoming traffic and there was no evidence that driver was intoxicated, distracted from the road, or speeding). The presence of central nervous system depressants in appellant’s blood stream after the crash, in and of itself, is insufficient to support a finding of reckless driving. See, e.g., W.E.B. v. State, 553 So. 2d 323, 326-27 (Fla. 1st DCA 1989) (reversing conviction for vehicular homicide where, although driver had consumed several beers hours prior to the accident, there was no evidence of impairment).
As in Berube, what was missing from the State’s proof in this case is evidence that the appellant, in an intentional, knowing and purposeful manner, was driving at the time of the incident in a manner demonstrating a conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property.
If Stracar really was guilty it was not the manner of her driving but rather the level of Oxycodone in her system (alone or in combination with alcohol and other substances). This was not adequately proven at trial. Outside of drugs and alcohol, she did not drive in a reckless manner under the law.
From a lawyer’s perspective, we congratulate the public defenders involved in the appeal, including Carey Haughwout and her assistant, Anthony Calvello, who is credited with handling the appeal.