STATE OF FLORIDA, APPELLANT,
v.
ROBERT YNOCENSCIO, APPELLEE
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The state appealed the dismissal of vehicular homicide charges against Ynocenscio, who caused a fatal collision while passing another vehicle in heavy fog. The appellate court reversed, holding that passing in fog with severely restricted visibility constitutes reckless driving sufficient to support a vehicular homicide charge, regardless of whether the defendant intended harm.
Passing in fog with restricted visibility constitutes reckless driving sufficient to support vehicular homicide charges. No intent to harm is required; it is sufficient that the defendant intended to drive as he did. The trial court's dismissal based on insufficient evidence of criminal intent was erroneous.
[1] Vehicular homicide charges do not require proof of intent to harm; it is sufficient to prove intent to engage in the reckless driving that caused the death.
[2] Attempting to pass a vehicle in dense fog, even in an area normally designated for passing, constitutes reckless driving sufficient for vehicular homicide charges.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“There is no requirement that the defendant intend to harm another by his reckless driving [...] It is sufficient that he intend to drive as he did.”
Establishes that vehicular homicide requires intent to drive recklessly, not intent to harm
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Join FLexlaw to unlock all legal intelligenceYnocenscio was driving on a two-lane highway and decided to pass another vehicle in an area normally designated as a passing zone, but visibility was …
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HARRIS, J.
Ynocenscio was charged with vehicular homicide when he attempted to pass another vehicle in the fog and collided with a speeding motorcycle, killing the motorcyclist. The court dismissed the charges finding that there was no evidence that Ynocenscio had criminal intent. The trial court also seems to have found, based on conflicting evidence, that defendant’s actions were at most negligent and, therefore, insufficient to justify the charge. We disagree and reverse for trial.
Ynocenscio was following another vehicle on a two-lane highway when he decided to pass. Although the area at which he attempted to pass was normally a passing zone, the normal visibility was considerably reduced by the fog. His speed in passing the other vehicle was only slightly greater than the vehicle being passed. When Ynocenscio’s vehicle was about half way up the side of the vehicle being passed, the motorcyclist came out of the fog and a head-on collision occurred. The driver of the vehicle being passed stated that the visibility was such that the passing should not have been attempted.
There is no requirement that the defendant intend to harm another by his reckless driving. See State v. Perez, 718 So. 2d 912 (Fla. 5th DCA 1998) (setting out standard jury instructions on vehicular homicide). It is sufficient that he intend to drive as he did. Here, there is no question that Ynocenscio intended to pass a vehicle in the fog. This action was more than mere negligence. Passing in a fog1 which restricts visibility, even in an area normally safe for passing, is as reckless as passing on a curve without being able to see around the bend or passing upon approaching a hill without being able to see above the crest. Such a driver is gambling on an empty highway with potential death as the stakes. The fact that defendant was not speeding, was driving on a straight section of the highway, and in a vehicle which was mechanically sound does not lessen the recklessness of his action.
Ynocenscio is not relieved of liability because the motorcyclist’s speeding contributed to the accident. The fact that a vehicle may be coming around the bend or over the hill or out of the fog and may be speeding is foreseeable. See M.C.J. v. State, 444 So. 2d 1001 (Fla. 1st DCA 1984), rev. denied, 451 So. 2d 849 (Fla.1984).
REVERSED and REMANDED.
SAWAYA, J., concurs.
GRIFFIN, J., dissents, without opinion.
. The denseness of the fog was a disputed issue of fact to be resolved by the jury, not the judge.
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Berube v. State, 6 So. 3d 624 (Fla. 5th DCA 2008)…is court should not overrule the jury’s verdict based upon the assumption that the jury accepted that testimony as being true. Of equal concern is that the majority opinion fails to address binding precedent from this court. In State v. Ynocenscio, 773 So. 2d 613 (Fla. 5th DCA 2000), this court reversed the trial court’s dismissal of a vehicular homicide charge which alleged that the defendant, while passing another vehicle in the fog, collided with a motorcyclist and killed him. This court explained: It is…
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Cahours v. State, 147 So. 3d 574 (Fla. 1st DCA 2014)…These facts are similar to the Fifth District’s case, State v. Ynocenscio, where that court determined passing a vehicle on a foggy highway constituted reckless behavior sufficient to support a conviction of vehicular homicide. State v. Ynocenscio, 773 So. 2d 613 (Fla. 5th DCA 2000). Reduced visibility due to smoke from the exploding firework, like reduced visibility due to fog, created a dangerous situation where continuing to drive as appellant did was sufficiently reckless to support a conviction of vehic…
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State v. Desange (Fla. 2d DCA 2020)…013)). The defendant does not have to have intended to harm anyone; rather, he must have engaged in intentional conduct demonstrating a conscious disregard of a likelihood of death or injury. Fla. Std. Jury Instr. (Crim.) 7.9; State v. Ynocenscio, 773 So. 2d 613, 615 (Fla. 5th DCA 2000); see also D.E. v. State, 904 So. 2d 558, 562 (Fla. 5th DCA 2005) ("Although a person does not have to foresee the specific circumstances causing the death of a victim in order to be guilty of vehicular homicide, the person m…
Authorities Cited
- M.C.J. v. State, 444 So. 2d 1001 (Fla. 1st DCA 1984)
- State v. Perez, 718 So. 2d 912 (Fla. 5th DCA 1998)