Victim walking in the center of roadway at night struck and killed by very intoxicated Defendant who had just let the victim out of her truck. Think it was intentional but have no way to prove it. Will I have a hard time with a causation charge? Oh there was also another car who hit the victim too but ME can say 1st vehicle killed the victim. Seems like a civil defense??? I'll bet someone else has tried a case like this before.

A charge under 6.04(a) should be pretty straightforward I would think. I guess in defending the drunk driver I might argue that if your victim was going to walk in the middle of the road it was almost certain that he was going to get hit (and probably killed) by someone else sooner or later so that his conduct was sufficient within itself to cause his death. But you counter that since the defendant struck first it makes no difference and also that we do not know how long the victim would have continued to engage in his negligent conduct. I think you could essentially argue the doctrine of last clear chance from the civil law (which looked to whose causative negligence occurred later in time). See e.g., Fish, 512 S.W.2d at 724.

[This message was edited by Martin Peterson on 07-24-04 at .]

They were married and fighting at the time he got out to walk home.I am confused about causation in criminal cases.She was very intoxicated but they can certainly argue he was a contributing cause to his death since he was walking in the road. Surely someone else has had a road kill victim that is similar to this case.

I have not had a case where the victim got out and was then hit by the driver, but I have had cases where the victim, driving an automobile, actually was the cause of the accident. Example: young driver makes a uturn into oncoming traffic without looking, is hit by a person who was driving drunk and dies. All the experts say the "cause" of the accident was the dead victim's uturn. The drunk, even though impaired, could not have prevented the accident even if he had been sober. I don't think your problem is with the definition of causation because the act of your driver was clearly sufficient to cause the death, e.g. the driver hit her and she died. The causation problem that you have is in the intox manslaughter statute itself. That is, you are required to prove that the the death was "by reason of the intoxication" of the driver. In other words, if a drunk driver's drunkenness wasn't the cause of the accident, it isn't manslaughter the way I read it. So the question is: could a person with normal reactions have avoided hitting the person? If so, I think you are technically ok, although I think a jury is going to be skeptical about a case with such facts. In my case, I was lucky enough to have a driver who also had two prior misd. DWIs, so I just prosecuted him for felony DWI and he got five years in prison anyway.

I had a case where the deceased was walking in the road and got hit by a truck driven by an intoxicated person. The grand jury "blamed" the person in the road and issued a no bill.