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"Operation" and "Reckless" in Aggravated Vehicular Assault or Homicide Case

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Last week (Dec. 2, 2010), the Franklin County Court of Appeals in Columbus, Ohio affirmed the conviction of Syrita Lindsey for vehicular assault arising out of a suspected DUI accident on April 18, 2007. The collision occurred when Ms. Lindsey's vehicle went left of center and struck a pickup truck head on resulting in serious physical harm to its occupants. The defendant refused a chemical test and due to a technicality, the jury never heard any evidence of that refusal.

The State of Ohio alleged that DUI and/or reckless operation of her vehicle was the proximate cause of the collision. The jury deadlocked on the DUI specification but convicted on the lesser reckless specification. The defendant argued that there was insufficient evidence that she was the operator of the at fault vehicle, that there was insufficient evidence she was impaired by alcohol, that there was insufficient evidence that DUI was the proximate cause of the collision, and that there was insufficient evidence that she was "reckless" as defined under Ohio law.

I've found 2 pieces of this case noteworthy. First, the trial judge gave the wrong jury instruction on the definition of "Operation". The defendant's trial attorney failed to object. The court of appeals ruled that since the trial attorney didn't object to the error and the error did not rise to the level of causing a manifest miscarriage of justice, the error was harmless. The actual definition of "Operation" in these types of cases is found in R.C. 4511.01(HHH).

Secondly, the defendant argued on appeal that there was insufficient evidence that her driving was "reckless" as defined in R.C. 2901.22(C) which states, "a person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist". The court found that consuming alcohol prior to driving, driving at a high rate of speed, going left of center, and going completely into the oncoming lane is reckless. The defendant's position was that she was simply going beyond the posted limit which is, by itself, not reckless. However, the Franklin County Court of Appeals has found speed only to be sufficient to support a conviction based upon reckless driving (State v. Wasson, 02AP-211, 2002).