State v. Lowe , 120 Idaho 391 ( 1990 )

WALTERS, Chief Judge.

Robert A. Lowe entered guilty pleas to charges of vehicular homicide and aggravated driving while under the influence of an intoxicating substance. The issue on appeal is whether I.C. § 18-301 prohibits separate punishment where a defendant, in a single driving incident, commits manslaughter as to one victim, and drunk driving resulting in great bodily harm to a separate victim. We hold that under these circumstances, separate punishment is permissible. Accordingly, we affirm.

The relevant facts can be summarized briefly. On September 24, 1988, Robert Lowe was driving his vehicle while under the influence of alcohol and collided with another vehicle. He killed the driver of the other vehicle, and seriously injured one of her passengers. Lowe pled guilty to charges of vehicular homicide, I.C. § 18-4006(3)(b), and aggravated driving under the influence of alcohol, I.C. § 18-8006(1). The district court imposed separate, unified sentences for each conviction: a fixed term of two years and an indeterminate term of four years on the vehicular manslaughter conviction; and eighteen months fixed, three years indeterminate on the aggravated driving while under the influence conviction. The district court ordered that the sentences run consecutively.

Lowe does not challenge his dual convictions under the double jeopardy clause of the United States Constitution. Rather, Lowe avers that the imposition of multiple punishments by the sentencing court was in contravention of I.C. § 18-301, a statute exceeding the scope of the constitutional protection against double jeopardy. See State v. Horn, 101 Idaho 192, 197, 610 P.2d 551, 556 (1980).

Idaho Code § 18-301 provides:

An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.

Pursuant to the statute, a defendant cannot be punished twice for the same act. Thus, if a defendant’s single action creates liability under two criminal statutes, he or she can only be sentenced under one statute. State v. Horn, 101 Idaho at 197, 610 P.2d at 556.

Lowe contends that the death of the first victim and the bodily injury inflicted upon the second victim resulted from his single act of driving under the influence and that, pursuant to I.C. § 18-301, he can be punished for only one of the convictions: either vehicular manslaughter or aggravated driving while under the influence. We disagree.

In general, we employ a “temporal test” — a test of time — to determine whether the statutory prohibition against double punishment has been violated. State v. Sterley, 112 Idaho 1097, 739 P.2d 396 (1987). Thus, if the acts comprising one of the crimes are completed before the commission of the second crime, then the two crimes cannot be said to arise from the same act. Id. at 1100, 739 P.2d at 397. However, the temporal test is not necessarily dispositive where multiple victims result from a single incident. “Where a single act of violence is committed with an intent to harm more than one person [or] with means likely to harm more than one person, and results in multiple victims, multiple punishments are warranted and permitted.” State v. Major, 111 Idaho 410, 415 n. 5, 725 P.2d 115, 120 n. 5 (1986) (citing the rule in Neal v. State, 55 Cal.2d 11, 9 Cal. Rptr. 607, 612, 357 P.2d 839, 844 (1960) cert. denied 365 U.S. 823, 81 S.Ct. 708, 5 L.Ed.2d 700 (1961)). Under this principle, a defendant who wilfully or recklessly threatens several persons with injury or death is viewed as having “acted upon” each of the resulting victims, and I.C. § 18-301 accordingly does not apply. See State v. Mane, 783 P.2d 61, 65 (Utah App. 1989) (viewing the multiple-victim rule as a recognition of multiple acts committed); Wilkoff v. Superior Court, 38 Cal.3d 345, 211 Cal.Rptr. 742, 745-46, 696 P.2d 134, 138 (Cal.1985) (viewing the multiple-victim rule as an exception to the multiple-punishment prohibition, based on defendant’s greater culpability). Were this principle not applicable to a defendant’s violent conduct resulting in multiple victims, “one who placed a bomb in an airline resulting in the deaths [or injury] of dozens of people would be less severely punished than one who repeatedly fired a gun at a number of persons, with a similar resulting casualty figure.” Mane, 783 P.2d at 64. See also, State v. Rieck, 286 N.W.2d 724 (Minn. 1979).

We conclude that the rule permitting multiple punishments when multiple injuries result from a single act of violence, governs this matter. We hold that the commission of vehicular manslaughter while driving under the influence constitutes an act of violence against the person. See State v. Lee, 116 Idaho 515, at 516, 777 P.2d 737, at 738 (Ct.App.1990) (review denied); accord People v. McFarland, 47 Cal.3d 798, 254 Cal.Rptr. 331, 333-35, 765 P.2d 493, 495-96 (1989). Clearly, such conduct is likely to result in harm to others using the public highways. We conclude that where a defendant, as the result of a single driving incident, commits vehicular manslaughter, he properly may be punished for injury to another person resulting from the same incident. Accordingly, we hold that the sentencing judge did not err in imposing dual sentences for Lowe’s convictions for vehicular manslaughter and aggravated driving under the influence.

The judgments of conviction, including the sentences, are affirmed.

SCHILLING, J., pro tern., concurs.