A unanimous Iowa Supreme Court ruled on October 23, 2020 that homicide by reckless driving is not a lesser included offense of homicide by OWI.
In State v. Johnson, the defendant argued he was entitled to a jury instruction that his reckless driving, not operating while intoxicated, was the cause of a crash that took the life of passenger in the other vehicle.
To determine whether a crime is a lesser included offense, the Court uses the “impossibility” test. Is it impossible to commit one crime without committing the other? Does the first (greater) crime include every essential element of the second (lesser) crime? If so, the second crime is a lesser included offense of the first and the jury must have the option to convict on the lesser offense. What’s at stake is the respective punishments if convicted; homicide by reckless driving is a class C felony punishable by up to 10 years in prison while OWI vehicular homicide is a class B felony punishable by up to 25 years.
Relying on the distinctions between “driving” and “operating” in the two criminal statutes, the Court determined that homicide by intoxicated operation does not include every essential element of homicide by reckless driving. Essentially, you can “operate” a vehicle in Iowa while intoxicated without recklessly “driving” it.
To the extent that the causation element had previously been paraphrased with imprecision, i.e., the state’s burden to establish a causal connection between intoxicated driving and the victim’s death in State v. Adams, 801 N.W.2d 365, 371 (Iowa 2012), the Court notes it would have been better served by directly quoting the statute’s use of the term “operating” instead. But, in any event, recklessness is not an element of OWI vehicular homicide. The trial court correctly refused to instruct otherwise.
