Victim’s Conduct Not A Vehicular Homicide Defense: North Florida’s Highest Court

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

Florida’s 1st District Court of Appeal held that the decedent’s conduct before a fatal accident can (almost) never be used as a defense to vehicular homicide. 

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

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

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

• The defendant failed to stop (e.g. hit and run), give relevant information to authorities, or render aid to the victim(s)
• The defendant has a prior conviction for vehicular homicide, vessel homicide, BUI manslaughter or DUI manslaughter (Trenton’s Law)

One of the key aspects of vehicular homicide is recklessness. This is defined as a defendant intentionally operating a vehicle in a manner that exhibits conscious, intentional disregard for the likely harm to persons or property that will result. W.E.B. v. State, 553 So. 2d 323 (Fla. 1st DCA 1989).

Critically, someone only being “careless” (negligent) is insufficient as a matter of law to support a vehicular homicide conviction. Careless behavior includes speeding, without any aggravating factors (e.g. poor visibility, crowded roads) – which is generally insufficient by itself to support a vehicular homicide conviction. Luzardo v. State, 147 So.3d 1083 (Fla. 3d. DCA 2014)

Another key prong of vehicular homicide is causation. Though the defendant does not have to be solely (100 percent) responsible for the victim’s death in order to be convicted, they must have been the primary reason for it (also known as proximate cause). State v. Gensler, 929 So.2d 27 (Fla. 3d. DCA 2006)

One of the most intriguing questions in a vehicular homicide case is whether or not a defendant can use the alleged victim’s conduct prior to a fatal crash as a defense to a charge of vehicular homicide. Examples of this may include:

• The victim sprinting across the road right in front of car while the light was green for the driver
• The victim unexpectedly stepping off a curb without the driver having time to avoid a collision
• The victim losing control of their car and colliding with the defendant’s vehicle, leading to a crash that kills the victim
• The victim is seated in another vehicle without a seatbelt on and is ejected from the vehicle upon collision, leading to their death

But when can a defendant use a victim’s conduct in their defense to vehicular homicide charges? Can a defendant argue that the victim was themselves primarily responsible for the accident – and thereby defeat the State’s ability to prove proximate causation in a vehicular homicide case?

The answer is – almost always, no. However, there are some exceptions to this rule. Let’s break down a key ruling from Tallahassee and North Florida’s highest court (Florida’s 1st DCA) on the issue – Union v. State, 642 So.2d 91 (Fla. 1st DCA 1994).

KEY CASE: Union v. State, 642 So.2d 91 (Fla. 1st DCA 1994)

In Union, the defendant (Union) was speeding on a highway when he collided with two other cars. He was convicted of vehicular homicide. 

According to the State, Union allegedly pulled into the opposite lane (oncoming traffic) to pass a car in front of him – and a three-vehicle collision resulted. A reconstruction expert for the State testified that Union was speeding by approximately 40 miles per hour prior to the crash. It also appeared as if Union consumed alcohol.

The two victims who died in one of the vehicles involved in the collision were not wearing seatbelts. As a result, Union filed a motion in limine disclosing his intent to argue that the victims’ conduct was the proximate cause of their deaths. However, the judge denied Union’s motion.

Prior to the jury being sent to the deliberation room, Union objected one final time to request an “independent intervening cause” instruction to allow the jury to consider the role that the lack of seatbelt wearing by the victims may have played. This was overruled, and he was convicted.

On appeal, Union argued that the inability to mention the victims’ failure to wear seatbelts to the jury undermined his right to present a defense, requiring a new trial. However, the 1st DCA did not agree – and affirmed Union’s conviction. The 1st DCA ruled:

“[T]he decedent’s conduct may only be asserted as a defense to vehicular homicide when that conduct could be viewed as the sole proximate cause of the accident which resulted in the death. The decedents’ failure to wear seat belts in the present case was not the sole proximate cause of the accident which resulted in their deaths.”

Essentially, the 1st DCA concluded that unless the victims’ failure to wear seatbelts “could be viewed” as the primary (proximate) cause of their deaths, Union could not argue that it was. The 1st DCA held that because Union’s reckless driving was so clearly tied to the fatal result, an independent intervening cause instruction was not warranted.

Though Union attempted to analogize his case to Velazquez v. State, 561 So.2d 347 (Fla. 3d DCA), which involved a reversal of Velazquez’s vehicular homicide conviction due to the victim’s pre-accident conduct, the 1st DCA was not persuaded by the comparison. The court wrote:

“The decedent in Velazquez did more than simply engage in a drag race, however. After the initial race had concluded without incident, the decedent suddenly turned around and raced in the other direction, reaching a speed of 123 MPH, crashed through a guard rail, jumped a canal, and died when he was ejected from the car and it landed on top of him. The decedent was not wearing a seat belt and had a high blood alcohol level.”

“The court concluded that the decedent ‘in effect, killed himself by his own volitional reckless driving-and consequently, it would be unjust to hold the defendant criminally responsible for this death.” … The failure of the victims to wear seat belts in the instant case is not comparable to the behavior of the decedent in Velazquez, consequently that case does not provide a basis for finding it unjust or unfair to impose criminal liability on appellant.”

In sum, Union v. State, 642 So.2d 91 (Fla. 1st DCA 1994) is a significant development in Florida’s corpus of case law on vehicular homicide and proximate cause. The 1st DCA held that Union could not cite the fact that the decedents were not wearing seatbelts to avoid being held criminally liable for vehicular homicide.

Critically, the 1st DCA did not say that a victim’s conduct can never be mentioned as part of a vehicular homicide defense. However, the court limited this to cases where the victim’s conduct could be viewed as the primary cause of their deaths, not just a contributing factor. As this was not the case in Union, the 1st DCA affirmed the guilty verdict against him.

Note: In Florida, establishing recklessness and causation in vehicular homicide cases is the same legal standard as in vessel homicide cases. For more on the similarities between these, 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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