FILED Court of Appeals

Division Ill State of Washington 511412021 11:41 AM

No. 358682

WASHINGTON STATE COURT OF APPEALS DIVISION III

STATE OF WASHINGTON,

Respondent,

vs.

MEEGAN M. VANDERBURGH,

Appellant.

APPELLANT'S SUPPLEMENTAL BRIEF

KEVIN J. CURTIS, WSBA #12085 WINSTON & CASHATT

1900 Bank of America Financial Center 601 West Riverside Avenue

Spokane, Washington 99201 Telephone: (509) 838-6131

Attorneys for Appellant

TABLE OF CONTENTS

Page

I. INTRODUCTION ............................ ...... .. ............... ..... 1

II. DISCUSSION ...... ........ .................. ................. .......... .. .............. 1

III. CONCLUSION ............ . ... .................... .. .. .................... . 8

TABLE OF AUTHORITIES

Cases Page

State v. Blake, 197 Wn.2d 170,481 P.3d 521 (2021) .......................... 1,2,3,4,5,6,7

State v. Burch, 197 Wn. App. 382,389 P.3d 685 (2016) ...... .. .... .. .. ....... . 2,3,4,5,6,7

State v. Bauer, 180 Wn.2d 929,329 P.3d 67 (2014) .. .... .. .......... ... .. .... .. ... .... ..... .. ... 6

11

I. INTRODUCTION

As argued at pre-trial hearings, at trial, in its initial brief, and recognized

by the Court at oral argument, a primary underlying issue in this appeal is the

treatment of the vehicular homicide statute under which Ms. Vanderburgh was

convicted (the DUI prong of RCW 46.61.520(1)(c)) as a "strict liability" criminal

statute, which has recently been severely limited by the Washington State

Supreme Court in State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). The

concept that this section of the vehicular homicide statute renders drivers that

exceed the legal limits of intoxication "strictly liable" for all resultant harm,

irrespective of whether they were at fault for the accident, would, as prohibited by

Blake, punish innocent conduct criminally. Were the statute to have been properly

analyzed as prohibiting such "strict liability," the trial court indeed erred when it

failed to properly instruct the jury on the relevant law relating to

Ms. Vanderburgh's lack of fault (i.e., innocent conduct) and the State's burden of

proof on that issue.

II. DISCUSSION

While the State has refused to recognize the import of the alleged "strict

liability" component of the criminal charge against Ms. Vanderburgh, it is

undisputed that the State continually argued to the trial court, in opposition to

defense counsel's assertion that the State had to prove fault in the accident, that it

was clear that vehicular homicide based on DUI was a "strict liability" crime:

1

"First, there was assertions made there were defenses to rear-end collisions, and

the case law is clear that this is a strict liability event." (Whaley, Pre-Trial

Hearing, 10/27/17, RP 49); "This is a criminal matter, and the courts have decided

that vehicular homicide, specifically by DUI, is a strict liability crime."

(McNulty, Pre-Trial Motions, 12/4/17, RP 150).

Interpreting the DUI prong of the vehicular homicide statute here as

allowing strict liability runs afoul of Blake, and its due process prohibition from

imposing strict criminal liability without fault, i.e., for innocent conduct; the

Court of Appeals' decision in State v. Burch, 197 Wn. App. 382, 389 P.3d 685

(2016) is vitiated by the ruling in Blake, and could not apply to relieve the State

here of its burden to show fault and the defense's right to proper instructions on

fault.

In Blake, the Supreme Court analyzed Washington's drug possession

statute, which had been previously interpreted by courts as a strict liability

offense, and not as one in which the intent element was merely "silent." The

statute had thus relieved the State of the burden of establishing any knowledge or

intent as an element of the crime, and thus potentially punished innocent (fault­

free) conduct without proving any mental state at all, in violation of the state and

federal due process dictates that prohibit government from criminalizing

essentially innocent conduct. Irrespective of legislative intent or police power,

both our state Supreme Court and the United States Supreme Court have made

2

clear that a statute that has no intent element and which can be applied to

criminalize innocent fault-free conduct cannot survive a challenge.

The Blake Court specifically ruled that due process protections are limited

by two principals: (1) that the necessity for "mens rea" in a criminal charge

should be the rule, rather than the exception; and (2) the government cannot

criminalize essentially innocent conduct. 197 Wn.2d at 179. The first limit

allows the legislature to create a strict liability crime only in certain

circumstances, as exceptions to the general rule on mens rea. 1 However, the

second constitutional limit has no exceptions and renders strict liability statutes

that have substantial penalties for essentially innocent conduct unconstitutional.

Id. If a statute "criminalizes wholly innocent and passive non-conduct on a strict

liability basis," it violates the due process clause, and is thus "void." Id. at 192.

While there could be strict liability statutes intended by the legislature, those

withstand due process only if they do not harshly punish conduct which is

innocent - here, "fault free."

The only Washington court to have suggested that the vehicular homicide

statute subjects defendants to "strict liability" without evidence beyond the

1 There is extensive analysis in both Blake and Burch on how to determine whether the legislature intended to include a mens rea element, and whether a statute that is silent as to mens rea was intended to create a strict liability offense, but irrespective of the analysis of whether a statute is intended to be strict liability, Blakes import here is based instead on the second prong of the constitutional analysis.

3

intoxication on which it is based is State v. Burch, supra. Like the statute

analyzed in Blake, the Burch Court found that the vehicular homicide statute was

silent on the necessity to establish intent.2 The Burch Court also recognized the

specific concern that the vehicular homicide statute could criminalize innocent

behavior, giving as an example a situation in which a driver who is under the

influence of drugs or alcohol could be safely stopped at a traffic light when a

second driver collides with the first driver's vehicle, killing that driver or a

passenger. In short, the Burch Court's analysis foretold the issues in Blake, but

reached an erroneous conclusion. 197 Wn. App. at 395.

There are a multitude of scenarios in which an intoxicated driver has not

engaged in any at-fault conduct in addition to the example set forth in Burch, such

as when a driver running a s~op sign or a red light "T-bones" an intoxicated driver

resulting in death or serious bodily injury; where a driver makes a left hand tum

in front of an vehicle with right of way being driven by an impaired driver; or any

other instance in which the rules of the road would establish that a driver, while

legally impaired, was not at fault, i.e., was engaging in innocent conduct. Yet by

the nature of the State's strict liability interpretation, this innocent conduct indeed

subjects such persons to conviction simply by driving the vehicle- including the

circumstances at issue here.

2 The Blake Court found it unnecessary to reach that conclusion, because courts had already established that the possession statute was indeed strict liability.

4

Failure to avoid a rear end collision while confronted with an emergency

situation as presented in the specific factual scenario presented in this case, where

pedestrian conduct created the emergency situation is similarly innocent conduct

criminalized by the strict liability of the vehicular homicide statute with

intoxication as the only event to prove: not fault. Ms. Vanderburgh's accident

reconstructionist expert (and an instructor for Washington State Patrol accident

reconstructionists) testified, with no rebuttal expert testimony from the State, that

Ms. Vanderburgh's driving was not unreasonable or uncharacteristic of a

reasonably prudent driver (Wells Trial Testimony, 12/11/17, RP 995-997), but the

jury was not instructed. When a statute encompasses and criminalizes innocent

conduct, it violates the due process clause of the state and federal constitution and

is void. Blake, supra. In fact, once that concession regarding innocent conduct

was made in Burch, the DUI prong of the vehicular homicide statute is void when

applied in that regard.

The Burch Court, while recognizing the issue, attempted to "cure" the

"innocent conduct" aspect by asserting the common concept of proximate cause,

but this does not somehow preclude Blake's application. The Burch Court's

attempt to ameliorate the recognized potential for the vehicular homicide statute

to impose criminal liability on no-fault conduct was to claim that "proximate

cause" eliminates the possibility that a driver who is intoxicated, but who is not at

fault for the accident, will not be convicted of the offense. First, Blake establishes

5

no such exception to the due process concerns; Burch analyzes innocent conduct

only as a single factor to reach its result that the vehicular homicide statute based

on the intoxication prong required no mens rea. Blake, however, found that a

strict liability statute cannot survive if it implicates and punishes that innocent

fault-free conduct.

Moreover, proximate cause, as outlined in Burch, does not eliminate the

due process concerns established in Blake. The State adopted this same argument

in objecting to Ms. Vanderburgh's proposed jury instructions regarding fault (CP

413-415). But this is not true, the proximate cause instruction given, WPIC 90.07

does not address or reconcile for the jury how innocent driving (lack of "fault")

negates a finding of proximate cause. Proximate cause means only that the

defendant "actively participated in the immediate physical impetus of harm." 197

Wn. App. at 396. The criminal instruction definition of proximate cause is

virtually identical to the civil definition. See, WPI 15.0; WPIC 90.07; CP 392.

This simply encompasses the cause-in-fact ("but for") aspect of any crime or act,

i.e., the driver being behind the wheel led directly to the occurrence or accident.3

It does not in any fashion rehabilitate a strict liability statute from punishing fault­

free conduct, and is actually akin to the attempt to create the judicially created

affirmative defense of "unwitting possession" rejected in Blake; a court cannot

3 The legal causation prong of proximate cause is not a jury issue at all, but rather involves a determination whether liability should attach as a matter oflaw. See, State v. Bauer, 180 Wn.2d 929,936,329 P.3d 67 (2014).

6

save an unconstitutional statute by judicially attempting to "ameliorate the

harshness" of its application. 197 Wn.2d at 188. Under the DUI prong of the

vehicular homicide statute, if a driver is behind the wheel, and his car is involved

in an accident, he will be the cause in fact by his or her' s mere presence at the

time and place of the occurrence, with no showing of fault for the occurrence; his

or her guilt for the crime instead can occur on innocent, fault-free driving which is

prohibited by Blake, and not precluded by the concept of proximate cause.

Instead, there is no indication that the Supreme Court has adopted the

Burch analysis in which the concept of proximate cause somehow vitiates the due

process prohibition from punishing innocent conduct via strict liability, and to the

extent Burch found that the vehicular homicide/intoxication statute was strict

liability, the Blake Court clearly voids the application of it because it would by its

terms apply to fault-free innocent conduct. And as applied here, the State, as in

Burch, argued that the basic proximate cause instruction was sufficient to relieve

it of any obligation to prove fault for the accident to avoid the dictates of the

innocent conduct problem, successfully objecting to instructions which would

have established the parameters of lack of fault for a following driver

encountering an emergency created by the pedestrians. If not included with the

concept of causation under Burch, the trial court's failure to utilize these

instructions made the criminalization of innocent conduct even more clearly

violative of Blake. See, Appellant's Opening Brief, p. 38, fn. 9.

7

III. CONCLUSION

For these reasons, and those previously outlined in Appellant's Briefs, this

Court must reverse Ms. Vanderburgh's conviction.

DATED this 14th day of May, 2021.

KEVIN J. CURTIS, WSBA #12085 WINSTON & CASHATT, LAWYERS Attorneys for Appellant 601 West Riverside Avenue, Suite 1900 Spokane, WA 99201 Telephone: (509) 838-6131 Fax: (509) 838-1416

8

DECLARATION OF SERVICE

The undersigned declares under penalty of perjury under the laws of the State of Washington as follows: That on May 14, 2021, I served the foregoing document on counsel for the State of Washington by causing a true and correct copy of said document to be delivered at the address shown below in the manner indicated:

Larry Steinmetz Spokane County Prosecuting Attorney's Office 1100 West Mallon Spokane, WA 99260 LSteinmetz@spokanecounty.org

Attorney for Respondent

VIA REGULAR MAIL 0 HAND DELIVERED rgJ BY FACSIMILE 0 VIA EMAIL 0

DATED at Spokane, Washington, on May 14, 2021. /

· · c);,ry-·zd'- .1kl.~-cl~ ,,.J~el Martindale

V

9

WINSTON & CASHATT, LAWYERS

May 14, 2021 - 11:41 AM

Transmittal Information

Filed with Court: Court of Appeals Division IIIAppellate Court Case Number: 35868-2Appellate Court Case Title: State of Washington v. Meegan Michelle VanderburghSuperior Court Case Number: 16-1-00216-2

The following documents have been uploaded:

358682_Briefs_20210514112033D3765145_6270.pdf This File Contains: Briefs - Appellants - Modifier: Supplemental The Original File Name was Appellant Supplemental Brief.pdf

A copy of the uploaded files will be sent to:

lsteinmetz@spokanecounty.orgscpaappeals@spokanecounty.org

Comments:

Sender Name: Janel Martindale - Email: jlm@winstoncashatt.com Filing on Behalf of: Kevin James Curtis - Email: kjc@winstoncashatt.com (Alternate Email: )

Address: 601 W. Riverside Ave.Suite 1900 Spokane, WA, 99201 Phone: (509) 838-6131

Note: The Filing Id is 20210514112033D3765145