Shooting Someone Who is Inside a Car From Inside That Same Car is Not a “Drive By Shooting”.

State v. Hayes, Minn.S.Ct., 2/27/2013.  Mr. Hayes shot and killed his drug supplier as the two men negotiated a deal in Mr. Hayes’s car.  The state said that this was a drive by shooting, but Justice Stras says not, it’s not.  Here’s what the statute says is a drive by shooting:

(a) Whoever, while in or having just exited from a motor vehicle, recklessly discharges a firearm at or toward another motor vehicle or a building is guilty of a felony and may be sentenced to imprisonment for not more than three years or to payment of a fine of not more than $6,000, or both.

(b) Any person who violates this subdivision by firing at or toward a person, or an occupied building or motor vehicle, may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.

The state said that sub-paragraph (b) created a separate crime – a redundant one since there’s already a second degree assault statute – so that shooting at a person who is inside a car is still a drive by shooting.  Justice Stras rejects this notion and says that sub-division (b) is a sentencing provision and that the “crime” is up there in sub-division (a).  What sealed the deal for Justice Stras was the phrase “guilty of a felony” in sub-division (a) and its absence in sub-division (b); and the phrase “may be sentenced” in (b), absent in (a).