Major Florida Court Outlines Factors to Establish Recklessness in Vehicular Homicide Cases

December 19, 2025 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

Florida’s 2nd District Court of Appeal outlined various factors courts should consider when evaluating whether a defendant is guilty of vehicular homicide as a matter of law. 

In Florida, vehicular homicide (Fla. Stat. 782.071) is a very serious felony offense. It is typically considered a second-degree felony (up to 15 years in prison and a $10,000 fine). However, it can be charged as a first-degree felony (up to 30 years in prison) 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 or render aid to the victim(s) 

Vehicular homicide does not require intentionally killing the victim using a vehicle. If the State proves all of the following beyond a reasonable doubt, a person is guilty of vehicular homicide:

• The defendant operated a vehicle
• The defendant’s operation of the vehicle caused the death(s) of one or more other people
• The defendant’s operation of the vehicle (which caused the death) was reckless

Often, it is not disputed whether someone was physically driving at the time that a fatal crash occurred. The key questions at the center of a vehicular homicide case tend to be: 

• Whether the defendant was reckless, and; 
• Whether their conduct was the actual cause (“cause in-fact”) of the victim’s death

Courts have sometimes found that a victim’s conduct in vehicular homicide cases can be used as a defense to an allegation that the defendant caused the victim’s death. But this is usually limited to cases in which the victim’s independent actions caused the fatal accident, such as:

• The victim grabbing the steering wheel from the defendant and causing the vehicle to lose control, resulting in a crash that caused their death ((J.A.C. v. State, 374 So.2d 606 (Fla. 3d. DCA 1979))
• The victim was consensually involved in a street race with the defendant – and in the process lost control of their own vehicle and crashed (Velazquez v. State, 561 So.2d 347 (Fla. 3d DCA 1990))

Since causation is normally not at issue, the primary dispute is typically whether the defendant was reckless. Recklessness occurs when someone intentionally drives a vehicle in a manner that they know or should know is likely to cause death or great bodily harm. It goes beyond failure to use ordinary care (negligence). Berube v. State, 6 So.3d 624 (Fla. 5th DCA 2008)

But what are the factors Florida’s courts have historically used to evaluate whether a defendant was reckless? One of these is whether the defendant was speeding. However, speeding alone is insufficient as a matter of law (without aggravating factors) to prove reckless driving (an element of vehicular homicide). Luzardo v. State, 147 So.3d 1083 (Fla. 3d. DCA 2014)

A key case in Florida responsible for establishing a “list” of factors courts typically consider in evaluating recklessness is Hamilton v. State, 439 So.2d 238 (Fla. 2d. DCA 1983). Let’s take a look at Hamilton and the key takeaways for vehicular homicide defendants in Florida.

KEY CASE: Hamilton v. State, 439 So.2d 238 (Fla. 2d. DCA 1983)

In Hamilton, the defendant (Hamilton) was convicted of vehicular homicide. According to the 2nd DCA, Hamilton hit two children who were playing in the roadway, fatally striking one.

On appeal, Hamilton argued the evidence was insufficient to establish recklessness (an element of vehicular homicide). Thus, she urged Florida’s 2nd District Court of Appeal to reverse her conviction for vehicular homicide. However, the 2nd DCA declined to do so – and affirmed it. The 2nd DCA noted:

“The evidence presented would have permitted the jury to find that the appellant was operating her vehicle in a residential area upwards of 50 miles per hour to 60 miles per hour and struck two small children playing in the roadway. The appellant testified that she never saw the children either before or after impact and suggested she might have been distracted by a movement of her child in the car. No drinking was involved and no mechanical defects were present in appellant’s vehicle.”

Although the 2nd DCA acknowledged that “speed alone” is insufficient to support a vehicular homicide conviction, it noted that various other facts in the record (in addition to Hamilton’s speeding) supported her conviction. The court wrote:

“The oft-repeated statement that excessive speed alone will not support such a conviction is heard once again. There were, however, a number of other factors or circumstances to be considered by the jury, in addition to excessive speed, as we have gleaned them from the record.”

“These factors and circumstances include: (1) that it was a clear, dry day with good visibility; (2) that appellant was traveling on a level two-lane roadway more or less in the middle of the road; (3) that there were no obstructions to her view ahead in the form of parked vehicles, foliage or any other objects; (4) that she was traveling in an all-residential area described by one of the investigating officers as heavily congested with children; (5) that she was familiar with the area and roadway having traveled it on other previous occasions; (6) that the road was posted with both a 30-miles-per-hour speed limit sign and a “SLOW-CHILDREN PLAYING” sign; (7) that the presence of the children in the roadway was observed by several witnesses at a time when appellant was a substantial distance from them; (8) that she failed to reduce the speed of her vehicle before or after striking the children and that the speed may have actually been increased after the collision as she left the scene; (9) that the appellant failed to exercise even the slightest degree of care to avoid the collision.”

Because Hamilton did all of the above (in addition to simply speeding), the jury was permitted to find her guilty of vehicular homicide. The charge did not require dismissal as a matter of law.

In sum, Hamilton v. State, 439 So.2d 238 (Fla. 2d. DCA 1983) is a significant development in Florida case law surrounding vehicular homicide.

The 2nd District Court of Appeal outlined the factors courts should consider when considering if recklessness was proven, including:

• Whether the defendant was speeding
• Whether visibility was good or poor
• Whether the defendant was staying “in their lane” or swerving out of it
• Whether the defendant was traveling in an area with heavy foot traffic (e.g. residential)
• Whether the defendant was familiar with the area in which they were traveling
• Whether there was signage indicating drivers should pay particular attention or slow down (e.g. school zones)
• Whether the cause of the death (e.g. the hazard that caused it) was foreseeable/perceived by others 
• Whether the defendant exercised “any degree of care” to avoid collision

These factors (among others that have been considered by courts in the last four decades) are critical to determining whether someone can be found guilty of vehicular homicide as a matter of law – or whether the charges must be dismissed (or a conviction overturned on appeal).

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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