In Criminal Vehicular Operation Prosecution, Exclusion of Evidence of Victim’s Alcohol Consumption and Erroneous Instruction on Causation Requires New Trial

State v. Nelson, Minn.Ct.App., 11/21/2011, petition for further review denied, 2/14/2012.  Mr. Nelson’s Chevy Silverado pickup truck struck Christopher Carlson’s Honda all-terrain vehicle, killing Mr. Carlson.  Both men had been drinking – Mr. Nelson’s BAC was .056, and Mr. Carlson’s BAC was .15 - and both were driving rather wildly; the state’s accident reconstruction expert concluded that Mr. Nelson’s speed was 81 m.p.h. one second before impact while the defense expert concluded that the speed was between 61 and 70 m.p.h. at impact.  What happened was, Mr.  Nelson topped a rise in the road and then drove the length of a football field in a ditch.  Amazingly, he came upon Mr. Carlson’s Honda ATV – which went into the ditch a mere fifty feet before impact and was likely traveling without lights - in the same ditch, colliding with the rear of the Honda ATV.  Here’ what happened next:

After the collision, [Mr. Nelson’s] pickup traversed County Road 1 to the ditch on the [opposite] side of the road, vaulted into the air after striking a field approach, and came to rest between 600-700 feet from the impact point of the collision.

The trial court granted the state’s pretrial motion to exclude evidence of Mr. Carlson’s level of intoxication.  Mr. Nelson had argued that this evidence was relevant to the issue of causation.  The definition of “causation” in a criminal vehicular operation case derives from the civil substantial factor definition of causation, and is commonly used in criminal vehicular homicide and operation cases.  State v. Dunagan, 521 N.W.2d 355 (Minn. 1994).  Here’s the definition:

For a party’s negligence to be the proximate cause of an injury, the act must be one which the party ought, in the exercise of ordinary care, to have anticipated was likely to result in injury to others. There must also be a showing that the defendant’s conduct was a substantial factor in bringing about the injury.

Complicating things for Mr. Nelson is the alleged negligence of Mr. Carlson.  On these facts, where Mr. Carlson’s negligence is “interweaved” with that of Mr. Nelson, it was unfair and thus an abuse of discretion to exclude evidence of Mr. Carlson’s alcohol consumption.  This error was not harmless, especially in combination with the instruction error that also occurred.

That error was the trial court’s failure to instruct the jury properly on causation.  The trial court told the jury that an element of the vehicular operation counts was that Mr. Nelson “caused the death of [Mr. Carlson], but declined the defense request to instruct the jury additionally that “A ‘direct cause’ is a cause that had a substantial part in bringing about the accident.” Excluding this additional instruction again misinformed the jury on what law to apply to determine whether Mr. Nelson’s actions were a “substantial factor in bringing about the injury.”  This error was also not harmless.  Mr. Nelson gets a new trial.