Are You Guilty of UUV If You Don't Know You Don't Have Permission?
by: Ryan • November 30, 2014 • no comments
The latest prosecutorial trend is to seek an Unlawful Use of a Vehicle conviction based on the defendant "fail[ing] to be aware of a substantial and unjustifiable risk that [he does not have consent of the owner]." In other words, the defendant doesn't know he doesn't have consent, but there is substantial risk he doesn't. He doesn't need to know there is such a risk, but we can infer -- given his failure to be aware -- that he should have.
If you handled UUV charges in the past, then you might be wondering what happened to the requirement that the defendant know he did not have consent. There is long-standing case law that when the state alleges "knowingly" in this context, the state must prove knowingly. But the state must have been losing too many cases by being unable to prove knowledge, and someone noticed that the statute does not actually use the word knowingly.
The statute says: (1) A person commits the crime of unauthorized use of a vehicle when: (a) The person takes, operates, exercises control over, rides in or otherwise uses another’s vehicle, boat or aircraft without consent of the owner;
As you probably know, when a crime is in the criminal code, and the statute doesn't specify a mental state, then normally the one that applies is the lowest one that is applicable. So when the element describes "conduct," like "use," the lowest applicable mental state is "knowingly." When the element describes a circumstance, the lowest possible mental state is "negligently."
The state's position is that "without consent of the owner" is a circumstance, consistent with State v. Wier (holding that the fact that “[t]he victim does not consent to the sexual contact” is a circumstance element of the crime [of sexual abuse in the third degree]. See I Model Penal Code and Commentaries (Official Draft and Revised Comments 1985) §2.02 comment at 231-32; Tape Recording, Criminal Law Revision Commission, Subcommittee No 1, Dec 18, 1968, Tape 29, Side 1 (statement of Courtney Arthur) (using lack of consent as an example of an attendant circumstance).")
Is Wier dispositive? Not necessarily. The defense argument is that the conduct is not use but rather "use without consent of the owner." There is a big difference, after all, between touching someone's intimate parts and riding in a car. From a legislative and common sense perspective, there is a good reason to have a lower threshold of culpability -- no one should get away with a reckless boob grab because the state can't prove the defendant didn't know the victim didn't consent, but riding or driving a car is, for want of a better term, inherently more innocent behavior and -- in the absence of actual knowledge the owner didn't consent -- subject to a number of more contradictory or subtle clues. To put it in the most obvious way, you should hesitate before touching someone else's genitals but we don't expect that same hesitation before jumping into the passenger seat of a car.
So that might be common sense but is it legislatively intended? Keep in mind the analysis in St v Enyeart, from a few weeks ago. The lowest possible mental state to apply to the conduct was knowingly, but the Court of Appeals decided intentionally applied, in light of the context and wording.
Beyond that, you'd want to look at the legislative history. But if we do lose on this issue, then you may want to make the point at sentencing that the repeat property offender laws -- which can be particularly harsh -- were written when knowing the car was stolen was the standard for conviction. As with any other criminal act, manslaughter or murder, assault II or assault III, a lower threshold for culpability should carry a lower sentence as well.
