State v. Ogilvie

734 S.E.2d 50, 292 Ga. 6, 2012 Fulton County D. Rep. 3459, 2012 WL 5381342, 2012 Ga. LEXIS 864
CourtSupreme Court of Georgia
DecidedNovember 5, 2012
DocketS12G0703
StatusPublished
Cited by33 cases

This text of 734 S.E.2d 50 (State v. Ogilvie) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ogilvie, 734 S.E.2d 50, 292 Ga. 6, 2012 Fulton County D. Rep. 3459, 2012 WL 5381342, 2012 Ga. LEXIS 864 (Ga. 2012).

Opinion

Nahmias, Justice.

We granted certiorari in this case to consider whether the Court of Appeals properly stated and applied the law governing accident and proximate cause in a “strict liability” offense. See Ogilvie v. State, 313 Ga. App. 305 (721 SE2d 549) (2012). We conclude that it did not and reverse its judgment.

1. Appellee Shirley Ogilvie struck and killed a seven-year-old boy with her car as she drove through a crosswalk while the child was [7]*7crossing the street.1 Ogilvie was convicted of second degree vehicular homicide, see OCGA § 40-6-393 (c), based on her failure to stop for a pedestrian in a crosswalk, see OCGA § 40-6-91 (a). The trial court had declined to give Ogilvie’s requested jury charge on the defense of accident. On appeal, she contended that the accident charge was authorized by her testimony that she could not stop before hitting the child because he ran across the street in front of her car, giving her only a second or two to avoid hitting him.

The Court of Appeals began its discussion of Ogilvie’s contention by stating that there is “no element of criminal intent for the strict liability offenses contained in OCGA Title 40, Chapter 6, Uniform Rules of the Road.” Ogilvie, 313 Ga. App. at 308. The court then said that the defense of accident is available in strict liability offenses because “[o]ne of the requirements for application of this defense is a lack of criminal intent, and a strict liability offense, by its very nature, involves a lack of criminal intent.” Id. at 309. The court rejected the

State’s claim that Ogilvie’s defense was “one of lack of proximate cause and not accident.” This argument overlooks that defendant can be entitled to both a proximate cause defense and an accident defense. See, e.g., Mitchell v. State, 255 Ga. App. 585, 591-592 (6) (565 SE2d 889) (2002) (trial court’s charges on accident and proximate cause proper and adjusted to evidence in case when boat passenger jumped in front of approaching boat on collision course with passenger’s boat). An accident charge should be given “if there is evidence that the defendant could not have avoided the collision due to circumstances beyond his control.” Moore v. State,[258 Ga. App. 293, 294-295 (1) (574 SE2d 372) (2002)]. Since the facts submitted at Ogilvie’s trial support the theory that she could not avoid hitting the child “due to circumstances beyond [her] control,” id., the trial court erred by refusing to give the accident charge.

Ogilvie, 313 Ga. App. at 310-311 (emphasis in original). The Court of Appeals held that the failure to give the accident charge was harmful and reversed Ogilvie’s convictions. See id. at 311-313. We granted certiorari.

2. (a) The Court of Appeals premised its reasoning on the proposition that there is no criminal intent element for the “strict [8]*8liability” traffic offenses set forth in Chapter 6 of Title 40 of the Georgia Code. That premise is incorrect.

Violations of Chapter 6’s Uniform Rules of the Road are crimes. OCGA § 40-6-1 says, “It is unlawful and, unless otherwise declared in this chapter with respect to particular offenses, it is a misdemeanor for any person to do any act forbidden or fail to perform any act required in this chapter,” and OCGA § 16-1-3 (9) defines a “misdemeanor” as “any crime other than a felony.” See also OCGA § 17-10-3 (a) (1) (“Except as otherwise provided by law, every crime declared to be a misdemeanor shall be punished as follows: (1) By a fine not to exceed $1,000.00 or by confinement in the county or other jail, county correctional institution, or such other places as counties may provide for maintenance of county inmates, for a total term not to exceed 12 months, or both . . . .”). Because the General Assembly has plainly said that these traffic offenses are misdemeanor crimes, they must contain the elements required to constitute a crime in Georgia as defined in OCGA § 16-2-1 (a): “A ‘crime’ is a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence.”

Criminal intent does not always equate to mental fault, guilty knowledge, or purposeful violation of the law. In Hoffer v. State, 192 Ga. App. 378 (384 SE2d 902) (1989), the Court of Appeals correctly identified the criminal intent required for the traffic offenses at issue. The defendant there contended that, to be convicted of running a red light, the State had to prove that he had the specific intent to run the red light. The court, however, rejected the view that the State must prove that the defendant “intentionally drove through a red light, or even that [he] knew that the light was red.” Id. at 379-380. Instead, the court explained, the State must prove only general criminal intent, which is “ ‘simply the intent to do the act which results in the violation of the law, and not the intent to commit the crime itself.’ ” Id. at 380 (citing Nelson v. State, 27 Ga. App. 50, 52-53 (107 SE 400) (1921)). The Hoffer court thus correctly concluded that, unless the particular provision indicates otherwise,2 the traffic offenses defined in Chapter 6’s Rules of the Road are “strict liability” offenses, meaning that they can be committed without a culpable mental state. See id. Accord Cromwell v. State, 283 Ga. 247,249-250 (657 SE2d 195) [9]*9(2008) (holding that the trial court correctly charged the jury, with regard to a Chapter 6 offense, that “ ‘criminal intent must be proved by the state in every prosecution, and that criminal intent does not mean an intention to violate the law or to violate a penal statute, but simply means to intend to commit the act which is prohibited by statute’ ” (citation omitted)); Goethe v. State, 294 Ga. App. 232, 236 (668 SE2d 859) (2008) (same); Queen v. State, 189 Ga. App. 161, 163 (375 SE2d 287) (1988) (explaining that “certain ‘strict criminal liability’ motor vehicle safety statutes ... can be violated ... without a showing of mens rea or guilty knowledge on the part of the violator”). See also People v. Rostad, 669 P2d 126, 129 (Colo. 1983) (“[T]he minimal requirement for a ‘strict liability’ offense is proof that the proscribed conduct was performed voluntarily — i.e., that such act must be the product of conscious mental activity involving effort or determination.”).

Thus, “strict liability” traffic offenses are not offenses with no criminal intent element. They do not require the specific intent or wrongful purpose that is an element of other crimes, but they do require the defendant to have voluntarily committed the act that the statute prohibits, which typically involves driving at a particular time and place (e.g., through a red light, see OCGA § 40-6-20

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Bluebook (online)
734 S.E.2d 50, 292 Ga. 6, 2012 Fulton County D. Rep. 3459, 2012 WL 5381342, 2012 Ga. LEXIS 864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ogilvie-ga-2012.