Merger - Hit-and-Run in a multi-car accident
by: D hubner • July 27, 2010 • no comments
Query: Where there's a single hit and run involving multiple cars, do the convictions for each car merge into one hit and run conviction? It's an open issue right now in Oregon but there's an excellent argument that they should merge:
ORS 161.067 lays out the standard for when offenses are or are not merged. Subsection 3 says that when the same conduct/criminal episode violates only one statutory provision and involves only one victim, multiple violations aren't separately punishable unless there is "a sufficient pause in the defendant's criminal conduct to afford the defendant an opportunity to renounce the criminal intent." In this situation, there is only one statutory provision which the defendant is charged with violating (ORS 811.700), and obviously there is no "sufficient pause" in his or her conduct, since the single act of leaving the scene is what gives rise to the two counts. The courts have made it clear that a "sufficient pause" cannot exist when the offenses are simultaneous. See, e.g., State v. Huffman, 234 Or App 177, 185 (2010) ("simultaneous occurrence of offenses does not give rise to a 'sufficient pause' for purposes of ORS 161.067(3)"); State v. Mac Donald, 232 Or App 431 (2009) (five counts of identity theft merged because they arose from defendant's theft of a single wallet with five pieces of the owner's identification inside it).
So the only possible question is whether the other drivers involved in the accident are victims. If so, there would be a separately punishable offense for each of them under ORS 161.067(2). The State might try to argue that they are victims because they suffered financial harm from the damage to their cars-and "victim" is defined elsewhere in the Oregon code as "the person or persons who have suffered financial, social, psychological or physical harm as a result of a crime." ORS 131.007. But the drivers suffered that harm because of the accident, and the accident is not the same thing as the crime. Under the hit-and-run statute, "the accident itself is neither criminal nor an activity. It is rather an event, the existence of which imposes duties upon certain people." State v. Eastman, 292 Or 184, 189 (1981); see also State v. Kappelman, 162 Or App 170, 174 (1999) ("In a hit-and-run case, the 'criminal activity' is leaving the scene without providing information or assistance; neither involvement in the accident nor causing the accident is a criminal act.").
In other words, the damage to the other drivers' cars is not a result of the defendant's crime, and therefore the drivers are not victims. The offense is only against the State. Once this is established, the entire question becomes moot, because the courts have specifically held that for the purposes of the merger statute, the State is not a "victim" at all:
"Although [the merger statute] allows separate punishment when the defendant's conduct involves repeated violations of the same statutory provision against the same victim, it applies only when repeated offenses are committed against a personal victim, not when the victim is the state[.]"
State v. Collins, 100 Or App 311, 314 (1990) (quotations omitted, emphasis in original). This principle has been reaffirmed more recently: "[T]he state is not a 'victim' for purposes of ORS 161.067," and thus the statutory provision for multiple charges is "inapplicable because the criminal conduct did not involve any victims within the meaning of the statute." State v. Camarena-Velesco, 207 Or App 19, 22 (2006) (merging two convictions for failure to appear).
Thus there can be only one charge for violation of ORS 811.700 arising from any single act of leaving the scene of an accident.
