Alternative means of DUI manslaugther

Michelle Davis won in State v. Shaw, No. 106,015 (Kan. App. July 20, 2012), obtaining a new trial in a Franklin County DUI manslaughter case.  The issue requiring reversal stemmed from Mr. Shaw's claim that a jury instruction that allows conviction based on an unintentional killing "committed in the (1) commission of, (2) attempt to commit, or (3) flight from a DUI" presents alternative means and that the state did not present any evidence that Mr. Shaw was attempting to commit or in flight from a DUI.  The COA (and apparently the state) agreed that this presents an alternative means case:

Under the plain language of K.S.A. 21-3442, there are three alternative means to commit the crime of involuntary manslaughter while driving under the influence of alcohol: the unintentional killing of a human being committed in the (1) commission of, (2) attempt to commit, or (3) flight from an act described in K.S.A. 8-1567 and amendments thereto. The State does not deny that this is an alternative means case.

The COA went on to find that the state had not presented any evidence of flight from a DUI:

Alternatively, the State contends that it presented sufficient evidence of flight. Although the State made no argument during the trial that the evidence established flight from a DUI, the State asserts on appeal that Shaw was "trying to get home without being caught driving under the influence" and was therefore fleeing from the commission of DUI. The citation the State gives to support this statement is merely to Ameigh's testimony that the collision occurred while he and Shaw were returning to Shaw's house from Gardner. Although the record establishes that the accident occurred near Shaw's home, there is nothing in the record that supports the State's contention that Shaw was "trying to get home without being caught driving under the influence."

Moreover, our Supreme Court has treated "flight" as coming after a completed crime, not an ongoing crime. Under the ordinary meaning of the language of K.S.A. 21-3442, there must be evidence of a separate flight from the crime of DUI to support a conviction under this alternative means. Here, there was absolutely no evidence presented at trial that Shaw committed involuntary manslaughter in flight from a DUI. Therefore, because there was insufficient evidence to support one of the alternative means, the conviction was in error.

[Update: the state filed a PR on August 10, 2012].

[Further update: the KSC denied the state's PR and the mandate issue on May 22, 2013.]