§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 (1987).

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 (1998).

Not inconsistent that jury found defendant not guilty of negligent homicide in the third degree, but guilty of intentionally, knowingly, or recklessly failing to stop at accident scene. 77 H. 329 (App.), 884 P.2d 392 (1994).

COMMENTARY ON §§707-703 AND 707-704

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 707-704

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.

Act 316, Session Laws 2012, amended §707-703 to include a provision for incidents involving a vulnerable highway user. Hawaii's roadways have often been called dangerous for pedestrians, cyclists, and others who legally use the public right of way without being in a motor vehicle. Unfortunately, when collisions occur between motor vehicles and these individuals, the outcome is often catastrophic. Amending the offense of negligent homicide in the second degree to include a provision for incidents in which vulnerable highway users are involved may, at the very least, increase driver awareness of these individuals. Conference Committee Report No. 33-12.