14-240B. Homicide by vehicle; driving under the influence; essential elements.

For you to find the defendant guilty of causing death by driving under the influence [as charged in Count ______]1, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:

1.The defendant operated a motor vehicle2

[while under the influence of intoxicating liquor3;]4

[while under the influence of ______, a drug5;]

2.The defendant’s driving while under the influence of [liquor]4 [or] [drugs] caused6 the death of ______(name of victim);

3.This happened in New Mexico on or about the ______day of ______, ______.

USE NOTE

1.Insert the count number if more than one count is charged.

2.If they are in issue, see Section 66-1-4.11 NMSA 1978, for the definition of a motor vehicle and UJIs 14-4511 and 14-4512 for definitions of “operating” and “actual physical control.”

3.UJI 14-243 NMRA, the definition of under the influence of intoxicating liquor, must be given if this element is given.

4.Use only applicable alternative or alternatives.

5.UJI 14-245 NMRA, the definition of under the influence of a drug, must be given if this element is given.

6.If causation is in issue, UJI 14-251 NMRA, the definition of causation, must be given.

[Adopted by Supreme Court Order No. 17-8300-012, effective for all cases pending or filed on or after December 31, 2017.]

Committee commentary. —See NMSA 1978, § 66-8-101 (2016).

Section 66-8-101 was amended in 2016 to create greater penalties for death caused by driving under the influence of alcohol or drugs (“DUI”) than for death caused by reckless driving. See 2016 N.M. Laws, ch. 16, § 1 (eff. July 1, 2016). In so doing, the statute retains an internal enhancement for prior DUI convictions applicable only to DUI violations of Section 66-8-101. See§ 66-8-101(F). The new version of the statute also separates the penalty provision for great bodily harm by any means.

Because the penalties now differ based on method and resulting harm, the theories can no longer be instructed as alternatives within a single elements instruction or a general verdict form, as the chosen alternative theories must be unanimous to incur heightened penalties. Compare State v. Godoy, 2012-NMCA-084, ¶ 6, 284 P.3d 410 (“[W]here alternative theories of guilt are put forth under a single charge, jury unanimity is required only as to the verdict, not to any particular theory of guilt.”) with Apprendi v. New Jersey, 530 U.S. 466 (2000) (requiring jury findings of facts necessary to elevate punishment). Thus, the Committee has separated UJI 14-240 into three separate instructions. If multiple theories are pursued, separate instructions and verdict forms must be submitted. See also UJI 14-6012 NMRA (Multiple verdict forms; lesser included offenses).

Our Supreme Court has made clear that “[t]he mental state required for vehicular homicide is that of conscious wrongdoing.”State v. Omar-Muhammad, 1985-NMSC-006, ¶ 20, 102 N.M. 274, 694 P.2d 922 (citing State v. Jordan, 1972-NMCA-033, 83 N.M. 571, 494 P.2d 984 (homicide or great bodily injury by vehicle is not a strict liability crime and requires a mens rea element, “a mental state of conscious wrongdoing”)). “Conscious wrongdoing has been defined as the purposeful doing of an act that the law declares to be a crime.” Id.“Thus, the mental state required for vehicular homicide (conscious wrongdoing) requires only that a defendant purposefully engage in an unlawful act.”Id. This mens rea is defined by UJI 14-141, General criminal intent. If homicide or great bodily harm by vehicle are charged under a DUI theory, the corresponding instructions must be provided. See Use Note 2.

The use of a vehicle to commit a homicide may under certain circumstances result in a charge of murder if the mens rea for murder is present. See, e.g., State v. Montoya, 1963-NMSC-098, 72 N.M. 178, 381 P.2d 963; see generally, Annot., 21 A.L.R.3d 116 (1968).

Driving under the influence must be the direct and proximate cause of the death when the homicide is based on that provision. SeeState v. Neal, 2008-NMCA-008, 143 N.M. 341, 176 P.3d 330; State v. Sisneros, 1938-NMSC-049, ¶ 14, 42 N.M. 500, 82 P.2d 274. State v. Myers, 1975-NMCA-055, 88 N.M. 16, 536 P.2d 280.

The statute for homicide by vehicle controls over the general, involuntary manslaughter statute and must be used. See State v. Yarborough, 1996-NMSC-068, 122 N.M. 596, 930 P.2d 131, aff’g, 1995-NMCA-116, 120 N.M. 669, 905 P.2d 209.

In a prosecution for depraved mind murder, if there is evidence of the use of drugs or alcohol which could have impaired the defendant's ability to drive “to the slightest degree”, in addition to the depraved mind murder instructions, the jury must also be instructed on vehicular homicide. See OmarMuhammad, 1987-NMSC-043.

[Adopted by Supreme Court Order No. 17-8300-012, effective for all cases pending or filed on or after December 31, 2017.]