Major FL Court: Bus Driver Who ‘Wasn’t Paying Attention’ Not Guilty of Vehicular Homicide

January 14, 2026 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 4th District Court of Appeal reversed the conviction of a trolley bus driver who hit a pedestrian in a crosswalk after momentarily not paying attention.

In Florida, vehicular homicide is a very serious felony offense. It is typically punishable by up to 15 years in prison and a $10,000 fine. Vehicular homicide is a first-degree felony if either (or both) of the following are true:

• The defendant has one or more prior convictions for vehicular homicide, vessel homicide, DUI manslaughter or BUI manslaughter (Trenton’s Law, 2025)
• The defendant failed to stop, give information to authorities, or render aid to the victim(s) following the incident 

For someone to be proven guilty of vehicular homicide (under Fla. Stat. 782.071), the State must establish all of the following beyond a reasonable doubt:

• The defendant was operating a motor vehicle
• The operation of the motor vehicle was reckless (in a manner likely to cause death or great bodily harm to another person)
• The operation of the motor vehicle caused the death of another person or their unborn child

Though causation does not require the defendant to have been entirely (100 percent) responsible for the victim’s death to be guilty of vehicular homicide, they must be the proximate cause. For more on this issue, click here.

Under Florida’s vehicular homicide law, a motor vehicle is defined as “every device in, upon, or by which any person or property is or may be transported or drawn upon a highway – except devices used exclusively upon stationary rails or tracks.” This does not include trains or trams, but it does include:

• Cars, trucks
• Motorcycles
• Mopeds 
• Motor scooters
• Golf carts or bicycles when operated on highways (Meister v. Fisher, 462 So. 2d 1071 (Fla. 1984))
• Commercial vehicles and RVs

Often, the key issue when it comes to determining someone’s guilt (or lack thereof) in a Florida vehicular homicide case is recklessness. If a defendant only drove carelessly (e.g. negligently) prior to the accident that caused the victim’s death, they are not guilty of vehicular homicide as a matter of law. W.E.B. v. State, 553 So.2d 323 (Fla. 1st DCA 1989)

In vehicular (and vessel) homicide cases, reckless driving occurs when someone intentionally operates in a vehicle in a manner that is likely to cause death or serious bodily injury to others. Luzardo v. State, 147 So.3d 1083 (Fla. 3d. DCA 2014). In the event that reckless operation of a vehicle actually causes death, that is vehicular homicide.

Per Luzardo, speed alone is generally insufficient to establish someone’s guilt of vehicular homicide. Courts have relied upon a variety of factors to assess whether someone drove recklessly. These include:

• Whether the defendant was speeding, and if so, by how much (though speeding alone is generally insufficient to establish recklessness in vehicular homicide cases)
• Whether the defendant disregarded traffic signals, such as stop signs (McCreary v. State, 371 So.2d 1024 (Fla. 1979))
• Time of day (or night)
• Whether visibility was poor or good
• Whether the defendant made illegal maneuvers (e.g. illegal u-turns/passed over yellow lines)
• Whether the roads were crowded/empty
• Whether a defendant was looking continuously at a device for a long period of time (Andriotis v. State, 399 So.3d 1235 (Fla. 5th DCA 2025))

If someone is accused of vehicular homicide, this charge may arise from a situation in which they were temporarily “distracted” and hit a pedestrian (or another vehicle), causing someone’s death. But does the victim dying automatically make someone guilty of vehicular homicide if they took their eyes off the road for a moment?

The answer is no – someone momentarily not paying attention and causing a car accident that results in the death of another is not automatically vehicular homicide. This is because under certain circumstances, such a failure is simply careless – not reckless. 

Let’s take a look at a key Florida case on this issue – State v. Esposito, 642 So.2d 25 (Fla. 4th DCA 1994) and what it means for defendants facing vehicular (or vessel) homicide charges in Florida.

KEY CASE: State v. Esposito, 642 So.2d 25 (Fla. 4th DCA 1994)

In Esposito, the defendant (Esposito) was driving a city “trolley bus” in a gated community with a significant elderly population. Esposito was driving the bus at approximately 15 miles per hour, below the speed limit in the neighborhood.

According to the evidence at trial, Esposito was distracted (not paying attention) as the victim stepped off a curb and began to walk into the crosswalk. Esposito did not see the victim before hitting him – and only applied the bus brakes about 15 to 20 feet after impact. 

Drivers at the scene testified that Esposito’s view was clear, and that he had plenty of time (and distance) to stop before striking the victim. At the conclusion of Esposito’s vehicular homicide trial, he was found guilty and sentenced to prison.

Esposito appealed his conviction to Florida’s 4th District Court of Appeal (Southeast Florida). Esposito argued that although the evidence showed he was carelessly failing to pay attention, his behavior did not rise to the level of “recklessness” necessary to be guilty of vehicular homicide.

The 4th DCA agreed with Esposito and reversed his conviction. The court found that Esposito’s “simple inattentiveness” fell far short of the recklessness required for him to be found guilty of vehicular homicide:

“Accepting the evidence in the light most favorable to the state, the facts and circumstances in this case support no more than a finding of simple inattentiveness (ordinary negligence) and are woefully insufficient to state a prima facie case of reckless driving (willful and wanton driving behavior). The state did not introduce any evidence that showed defendant operated his vehicle recklessly. W.E.B. v. State, 553 So.2d 323 (Fla. 1st DCA 1989). There was no evidence that he had been drinking, was speeding or driving erratically, or that he failed to observe any traffic regulations. He was in control of the trolley and was driving at less than the posted speed limit. Albeit a tragedy, the evidence introduced at trial merely demonstrated the elderly driver’s negligence in failing to observe a pedestrian in the roadway.”

In essence, the 4th DCA found that although it was careless (negligent) for Esposito not to be paying attention, his actual operation of the bus (below the speed limit, in clear conditions, while abiding by traffic regulations) complied with all traffic laws. As a result, the 4th DCA reversed his vehicular homicide conviction.

But one 4th DCA judge disagreed. In a brief dissent, Judge Stone wrote that there was sufficient evidence in the record to support a finding of recklessness in the case based on the totality of the circumstances:

“I would affirm. The trial court did not err in denying the motion for judgment of acquittal. In my judgment, evidence that a bus driver is proceeding without looking where he is going under these circumstances may be considered by a jury as driving in willful and wanton disregard for safety. Although momentary inattentiveness, alone, may be insufficient to support a reckless driving or vehicular homicide conviction, the totality of the evidence presented in this case does present a prima facie case.”

However, Judge Stone’s opinion did not win the day. As a result, Esposito’s vehicular homicide conviction was tossed out and he was released from custody.

In sum, State v. Esposito, 642 So.2d 25 (Fla. 4th DCA 1994) is a significant development in Florida’s corpus of case law surrounding vehicular homicide. Florida’s 4th DCA found:

• Esposito was operating his vehicle (a trolley bus) in a manner that complied with traffic regulations
• The fatal accident was due to Esposito momentarily not paying attention – which was careless, not reckless
• Because Esposito’s operation of the bus was not reckless (likely to cause death or serious bodily injury), he was not guilty of vehicular homicide as a matter of law

Florida’s criminal defense community should take note of Esposito, as it establishes that brief inattentiveness behind the wheel does not make someone automatically guilty of vehicular (or vessel) homicide if a fatal accident occurs.

Note: The legal standard for recklessness in Florida is the same in vehicular homicide and vessel homicide cases. For more on this, click here.

It is critical to find experienced and trusted legal representation as soon as possible if someone is charged with vehicular homicide, DUI manslaughter, BUI manslaughter or vessel homicide. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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