Panic Isn’t Recklessness: Major Florida Court Reverses Vehicular Homicide Conviction

December 4, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 5th District Court of Appeal reversed a defendant’s vehicular homicide conviction after he stopped unexpectedly before entering an intersection – then made a panicked left turn that caused a fatal collision.

In Florida, vehicular homicide is a very serious felony offense. For someone to be guilty, the State must prove all of the following beyond a reasonable doubt (Fla. Stat. 782.071):

• The defendant was operating a motor vehicle (car, truck, motorcycle, van, etc.)
• The defendant’s actions caused the death of a human being or unborn child at any stage of fetal development
• The defendant was operating the vehicle recklessly at the time

Vehicular homicide is typically considered a second-degree felony (up to 15 years in prison and a $10,000 fine). However, vehicular homicide is a first-degree felony (up to 30 years in prison and a $10,000 fine) if either of the following are true:

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

Often, the question of whether someone committed vehicular homicide is answered by whether their recklessness caused the death of the victim(s). Mere negligence (carelessness) behind the wheel is legally insufficient to support a vehicular homicide conviction. W.E.B. v. State, 553 So.2d 323 (Fla. 1st DCA 1989) 

Note: Recklessness for vehicular homicide purposes is defined as intentionally driving a vehicle in a way that shows a conscious and intentional indifference to consequences, with knowledge that damage is likely to be done to persons or property. For more on this, click here.

Florida’s courts have historically taken the following into consideration when evaluating if a defendant was reckless:

• Whether the defendant was speeding, and if so, by how much (Gensler v. State, 929 So. 2d 27 (Fla. 3d DCA 2006))
• Whether the defendant disregarded traffic signals/stop signs (McCreary v. State, 371 So.2d 1024 (Fla. 1979))
• Time of day (or night)
• Whether visibility was poor 
• The type of vehicle the defendant was driving (e.g. if it was a truck full of potentially explosive fuel, as in Santisteban v. State, 72 So.3d 187 (Fla. 4th DCA 2011))
• Whether the roads were crowded or empty 
• Whether a defendant was looking continuously at their cell phone for a substantial amount of time (Andriotis v. State, 399 So.3d 1235 (Fla. 5th DCA 2025))

Speeding alone is generally insufficient to support a vehicular homicide conviction as a matter of law (in the absence of any other aggravating factors). Luzardo v. State, 147 So.3d 1083 (Fla. 3d. DCA 2014) 

Occasionally, a defendant will be convicted of vehicular homicide (found guilty) after their reckless operation of a vehicle is determined to have caused one or more deaths. But sometimes, this conviction will be reversed on appeal, as the facts of the case do not support a finding that a defendant was reckless (required to support a vehicular homicide conviction).

One major case on this front is Berube v. State, 6 So.3d 624 (Fla. 5th DCA 2008). There, the 5th District Court of Appeal reversed Berube’s vehicular homicide conviction after considering the totality of the circumstances – and concluding that he was not reckless as a matter of law.

But why did the 5th DCA toss out the jury’s guilty verdict? Let’s take a closer look at Berube v. State, 6 So.3d 624 (Fla. 5th DCA 2008) and what it means for vehicular homicide defendants in Florida.

KEY CASE: Berube v. State, 6 So.3d 624 (Fla. 5th DCA 2008)

In Berube, the defendant (Berube) was driving a minivan with multiple family members inside. Berube was approaching an intersection with a garbage truck behind him, traveling roughly 45 to 50 miles per hour.

Berube realized he needed to perform a left turn to continue to his destination. However, he was located in the center lane, and the left turn lane was occupied by multiple vehicles. Concerned he would have no opportunity to turn, he slammed on his brakes suddenly. The garbage truck did so as well and honked at Berube after nearly rear-ending him.

Berube’s family members began yelling at him to turn, concerned about the near-collision with the garbage truck. Panicked, Berube pulled into the intersection from the center lane and tried to make a left turn. However, his view of oncoming traffic was obstructed by the vehicles in the left turn lane.

While Berube was making the turn, his minivan collided with an oncoming vehicle that he had not previously seen. The driver of the other vehicle (which had the right of way) died.

Berube was charged with vehicular homicide. At trial, he argued that although his driving may have been negligent, it was not reckless. Berube also moved for a judgment of acquittal (MJOA) after the State rested, arguing the evidence against him was legally insufficient. This was denied by the judge, and he was convicted.

After the jury found him guilty, Berube appealed to Florida’s 5th District Court of Appeal (Northeast Florida). He argued that although his brake-and-turn was negligent, it was not reckless as a matter of law.

The 5th DCA agreed with Berube, reversing his vehicular homicide conviction and ordering him to be released from custody. Evaluating the totality of the circumstances leading up to the fatal crash, the 5th DCA wrote:

“The admissible evidence in this case, taken in the light most favorable to the State, shows that Berube was driving on a busy four-lane road when he perceived behind him a truck’s quick stop, squealing brakes, and air horn, and moved into the center of the intersection. In the double left turn lanes in both directions, cars were stopped for red lights. His panic stricken passengers screamed at him to move because they thought the truck still might hit them. He briefly hesitated and then executed an improper left turn across oncoming traffic.”

“The cases demonstrating culpability for vehicular homicide show a level of recklessness far exceeding Berube’s conduct. Berube was not intoxicated or otherwise distracted from the road while driving. He was not speeding, and his vehicle was mechanically sound, the weather clear and the day sunny.”

“What is missing from the State’s proof is evidence that Berube, in an intentional, knowing, and purposeful manner, made an improper left turn with a conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property. See McCreary; W.E.B., and Del Rio. Because the State must prove that level of conduct to support recklessness, the evidence in this case falls short. We conclude that the trial court erred in denying Berube’s motion for judgment of acquittal.”

Essentially, the 5th DCA concluded that despite his poor decision-making immediately before the crash, Berube was careless – not reckless. According to the 5th DCA, he did not consciously and intentionally drive in a manner that showed indifference to damage likely to be caused to persons or property.

Notably, Judge Palmer of the 5th DCA authored a dissent in the case – arguing Berube’s conduct did rise to the level of recklessness necessary to sustain a vehicular homicide conviction. Judge Palmer wrote:

“After coming to a dead stop in a through lane of a road with a 50 mile per hour speed limit, and after the truck behind him came to a complete stop, Berube drove his vehicle across three lanes of oncoming traffic without first making sure that the lanes were clear. On these facts, the trial court properly denied Berube’s motion for entry of a judgment of acquittal, concluding that it was for the jury to determine whether Berube’s conduct was willful, wanton, or made with reckless disregard. As the trial court properly noted, it was reasonably foreseeable under these circumstances that death or great bodily harm would result when Berube drove across multiple lanes of traffic when he did not have the right of way and did not check to determine if the lanes were clear of traffic. I would affirm.”

Judge Palmer found that the combination of Berube’s “dead stop” after he’d been traveling approximately 50 miles an hour, combined his blind turn from a non-turn lane into oncoming traffic, showed recklessness (not just negligence). However, Judge Palmer’s opinion did not rule the day. 

In sum, Berube v. State, 6 So.3d 624 (Fla. 5th DCA 2008) is a significant development in Florida case law on the issue of recklessness for vehicular homicide purposes.

The 5th DCA reversed Berube’s conviction, finding that he was only negligent (not reckless) despite:

• Coming to a dead stop after traveling approximately 50 miles per hour
• Nearly causing a garbage truck to rear-end him
• Making a blind turn into oncoming traffic from a non-turn lane

The Berube court concluded that Berube’s driving was not even particularly close to the level of “recklessness” required to affirm his vehicular homicide conviction. This makes the Berube case an important one for Florida criminal defendants and defense attorneys to read and understand in vehicular and vessel homicide cases.

Note: Recklessness for purposes of proving vehicular homicide has the same definition as it does in vessel homicide cases. For more on vessel homicide, 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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