§707-704  Negligent homicide in the third
degree.  (1)  A person is guilty of the offense of negligent homicide in
the third degree if that person causes the death of another person by the
operation of a vehicle in a manner which is simple negligence.



(2)  "Simple negligence" as used in
this section:



(a) A person acts with simple negligence with respect
to the person's conduct when the person should be aware of a risk that the
person engages in that conduct.



(b) A person acts with simple negligence with respect
to attendant circumstances when the person should be aware of a risk that those
circumstances exist.



(c) A person acts with simple negligence with respect
to a result of the person's conduct when the person should be aware of a risk
that the person's conduct will cause that result.



(d) A risk is within the meaning of this subsection
if the person's failure to perceive it, considering the nature and purpose of
the person's conduct and the circumstances known to the person, involves a
deviation from the standard of care that a law-abiding person would observe in
the same situation.



(3)  Negligent homicide in the third degree is
a misdemeanor. [L 1972, c 9, pt of §1; am L 1988, c 292, §3]



 



Cross References



 



  Negligence with respect to result of conduct, see §702-206.



 



Case Notes



 



  Court has discretion to grant deferred acceptance of guilty
or deferred acceptance of no contest pleas for second degree negligent
homicide.  69 H. 438, 746 P.2d 568.



  As nonconformity with relevant statutory standards may be
admissible as evidence of negligence in civil cases, and simple negligence is
defined by subsection (2)(d) to be violation of "the standard of care that
a law-abiding person would observe in the same situation", a jury may,
consistent with the requirements of due process and other rules peculiar to the
criminal process, be allowed to also consider relevant statutes or ordinances
in criminal negligent homicide cases.  88 H. 296, 966 P.2d 608.



  Not inconsistent that jury found defendant not guilty of negligent
homicide in third degree, but guilty of intentionally, knowingly, or recklessly
failing to stop at accident scene.  77 H. 329 (App.), 884 P.2d 392.



 



COMMENTARY ON §§707-703 AND 704



 



  In adopting the Code in 1972, the Legislature basically
retained much of the prior Hawaii law relating to negligent homicide.  Like the
previous Hawaii law, negligent homicide under the Code is divided into two
degrees.  As in prior law, the Code restricts the offense to cases involving
the operation of a "vehicle."  However, under prior law negligent
homicide in the first degree was committed where a person by the operation of
any vehicle in a "grossly negligent" manner caused the death of
another.  HRS §748-9.  Under the Code, §707-703(1), a person is guilty of negligent
homicide in the first degree if the person causes the death of another person
by the operation of a vehicle in a "negligent" manner.  The
statutorily defined standard of "negligence" upon which this offense
is based is set forth in §702-206(4).  The actor should be aware of a
"substantial and unjustifiable risk" with respect to the actor's
conduct, the attendant circumstances, and the result of the actor's conduct. 
The actor's failure to perceive the risk must constitute a "gross deviation"
from the standard of care that a law-abiding person would observe in the same
situation.  (See §702-206(4).)  The offense is a class C felony.



  The prior law made it negligent homicide in the second degree
in the case where a person, by the operation of a vehicle in a
"negligent" manner, caused the death of another.  HRS §749-9(b). 
Section 707-704(1) of the Code provides that a person is guilty of negligent
homicide in the second degree if the person causes the death of another person
by the operation of a vehicle "in a manner which is simple
negligence."  Negligent homicide in the second degree is a misdemeanor. 
Under §707-704(2), a person acts with "simple negligence" when the
person should be aware of a "risk" (not "substantial and
unjustifiable risk", as stated in §702-206(4)) with respect to the
person's conduct, the attendant circumstances, and the result of the person's
conduct.  The person's failure to perceive the risk must constitute a
"deviation" (not "gross deviation", as stated in §702-206(4))
from the standard of care that a law-abiding person would observe in the same
situation.



  The Code as adopted differs in several respects from the
recommendation of the Proposed Draft with respect to negligent homicide.  The
Proposed Draft provided that a person is guilty of negligent homicide if
"he negligently causes the death of another person."  It constituted
the crime as a misdemeanor.  Under the Proposed Draft, the offense had only one
degree and it was not restricted to the operation of a vehicle.  Also, the
draft did not recognize as a basis for culpability the standard of "simple
negligence" set forth in the Code's second degree negligent homicide.



  In Conference Committee Report No. 2 (1972), it is stated:



  "Your Committee has agreed to the creation of two
degrees of negligent homicide in order to preserve the present law distinction
between gross negligence and simple negligence.  Your Committee finds that
expansion of the offense of negligent homicide beyond the scope of the
operation of a motor vehicle is not necessary at the present time."



 



SUPPLEMENTAL COMMENTARY ON §§707-703 AND 704



 



  Act 292, Session Laws 1988, amended these sections by making
negligent homicide in the second degree a class C felony and negligent homicide
in the third degree a misdemeanor.  The legislature felt that stronger measures
were needed to protect the public and to deter those who negligently operate a
motor vehicle, which results in bodily injury or death to others.  Senate
Conference Committee Report No. 278, House Conference Committee Report No.
105-88.