CrimLaw Problem Forum

[lawyerwannabe]

Feedback on what my analysis may be missing would be appreciated (the class used Dressler's book btw if that matters/helps):

(A) What problems might the following statute present? Would it be permissible under the U.S. Constitution?

Any person who engages in excessively risky driving shall be fined up to $10,000 and imprisoned up to one year.

(B) If the legislature included the additional language below, what problems might the statute present? Would it be permissible under the U.S. Constitution?

It is an affirmative defense to liability under this statute if the defendant proves by a preponderance of the evidence that he did not drive recklessly or negligently.

Note: only given 15 minutes to answer this question on practice test so what is below is what I could come up with in that amount of time. Thanks!

Analysis

(A) At first blush, the statute does not appear to require any MR. Thus, the statute, if read on its face, is strict liability. While there is generally an assumption against strict liability, statutes where no MR is ok are generally the public welfare statutes that impose no prison time and small fines. The crimes proscribed under these statutes also normally affect a large number of people and thus the collective interest is furthered by imposing a fine without looking into mental states. While here arguably many people are affected by excessively risky driving and the collective interest would be protected by imposing fines in hope of deterring future conduct without need to look into mental state, the fine here is abnormally high and the punishment also entails up to one year of prison sentence. Most traffic violations do not come close to these penalties. Thus, if a person is to be punished this amount, it would be impermissible under the Constitution to do so without evidence of a certain level of MR.

Accordingly, the court would probably read a MR requirement into the statute. The most reasonable way for the court to read this statute so that it is constitutional would be to import a MR of recklessness. If a driver drives drives excessively risky and consciously disregards the substantial and unjustifiable risk that he is doing so, then he should be found guilty.

(B) If the legislature included this affirmative defense, the affirmative defense essentially would work to negate an element of the substantive crime. If the driver could prove that he did not drive negligently in an excessively risky manner, then he would essentially be negating the fact that he did not drive recklessly because negligence is subordinate to recklessness (something that the prosecution is supposed to prove beyond a reasonable doubt in the first place to obtain a conviction). If the driver could prove that he did drive recklessly in an excessively risk manner, then he would clearly be negating an element of the substantive crime. Both of these variations are unconstitutional under Patterson where the Supreme Court clearly stated the defendant cannot be burdened with an affirmative defense that negates an element of the substantive offense because the prosecution has the burden to prove all of these elements beyond a reasonable doubt.

[TFR]

My analysis:

statute 1 prevents a vagueness problem, because who knows what excessively risky mean. thus its unconstitutional.

statute 2 takes care of that problem, arguably, by adding a MR element, we now know that statute prevents at least neglgient driving, which undr the MPC means he should have been aware of a substantial and unsjutifiable risk.

But, we still have the problem of the prosecution needing to prove the elements of the offense.

[AVBucks4239]

Need to have something about how the first statute is vague. What does driving "excessively risky" mean?