NCJ Number
61509
Journal
Journal of the Kansas Bar Association Volume: 47 Dated: (FALL 1978) Pages: 209-215
Date Published
1978
Length
7 pages
Annotation
THE MEANING, SCOPE, AND APPLICATION OF THE KANSAS VEHICULAR HOMICIDE STATUTE IS PRESENTED; THE WEAKNESSES AND SUGGESTED MODIFICATIONS OF THE STATUTE ARE HIGHLIGHTED.
Abstract
THE KANSAS VEHICULAR HOMICIDE STATUTE WAS ENACTED IN 1969 AS PART OF THE NEW KANSAS CRIMINAL CODE, AND WAS SUBSEQUENTLY AMENDED IN 1972 TO REFINE ITS MEANING AND PURPOSES. NEVERTHELESS, IN 1978, THE STATUTE REMAINS VAGUE AND CONFUSING IN BOTH SCOPE AND APPLICATION. INHERENT AND CRUCIAL TO ANY PROSECUTION AND CONVICTION UNDER K.S.A. 21-3405, LIES THE DECISION AS TO WHETHER THE DEFENDANT'S CONDUCT AMOUNTED TO A 'MATERIAL DEVIATION' FROM THE STATUTORY STANDARD OF CARE. THE DIFFICULTY LIES IN DETERMINING WHETHER A GIVEN SET OF FACTS AND CIRCUMSTANCES AMOUNT TO SUCH A DEVIATION FROM THE STANDARD OF CARE EXPECTED. THE WORD 'MATERIAL' IS A VAGUE AND JUDICIALLY UNDEFINED STANDARD. NUMEROUS CASES FALL WITHIN AN AREA IN WHICH IT COULD BE DIFFICULT OR IMPOSSIBLE TO TELL FROM THE FACTUAL SITUATION WHETHER THERE IS IN FACT MERE 'ORDINARY NEGLIGENCE,' OR THE 'MATERIAL DEVIATION' NECESSARY FOR THE ACT TO MERIT PUNISHMENT AS A CRIME. NO OTHER STATUTE USES THE KANSAS STANDARD OF 'MATERIAL DEVIATION' ALTHOUGH THREE OTHER STATES HAVE ENACTED VEHICULAR HOMICIDE STATUTES. THESE PROBLEMS COULD BE RESOLVED THROUGH LEGISLATIVE ACTION IN ONE OF SEVERAL POSSIBLE FORMS. 'MATERIAL DEVIATION' COULD BE CHANGED TO GROSS NEGLIGENCE, RECKLESS DISREGARD, UNLAWFUL OPERATION, HIGH DEGREE OF NEGLIGENCE, SIMPLE NEGLIGENCE, RECKLESS MANNER, OR A COMBINATION OF THESE TO CREATE A JUDICIALLY DEFINED STANDARD. OTHER POSSIBILITIES INCLUDE ADOPTION OF A STATUTE FROM ANOTHER STATE WHICH HAS BEEN JUDICIALLY TESTED AND DEFINED OR ADDING A SUBSECTION TO THE PRESENT STATUTE WHICH CLEARLY DEFINES 'MATERIAL DEVIATION.' REMEDIAL LEGISLATION IS APPROPRIATE IF KANSAS IS TO CLARIFY THE LAW ON VEHICULAR HOMICIDE AND RETAIN AN UNAMBIGUOUS AND WORKABLE CRIMINAL CODE. FOOTNOTES ARE INCLUDED IN THE ARTICLE. (LWM)