People v. Mumaugh, 2018 IL App (3d) 140961 (January). Episode 453 (Duration 16:35)
Defendant was driving under the speed limit when he hit a girl wearing all black in the middle of night when she was standing in the middle of the roadway.
This is an Illinois DUI case.
Mumaugh was 43 years old at the time of trial. He lived in Marseilles, and had been a professional truck driver for 27 years. On June 21, 2012, at approximately 10:30 p.m., Mumaugh left work in Ottawa and began driving his GMC Blazer east on I-80 toward Marseilles.
He exited the Interstate at the Marseilles exit and proceeded south on Highway 15 toward the Marseilles city limits.
It was a very dark night with no moonlight.
Highway 15 is a paved, two-lane road. At the time of the accident, the posted speed limit was 55 m.p.h. At the location of the accident, there were no lights illuminating the highway. The area is rural, and the highway is surrounded by open fields and bordered by gravel shoulders.
At the same time Mumaugh was driving home that night, 12-year-old Jennifer Dennis (Jennifer) and her friend, 13-year-old Courtney Brown (Courtney), were walking on the east side of Highway 15, at the edge of the northbound lane.
Jennifer and Courtney had sneaked out of Courtney’s house to go the Dollar Store for soda. Finding the store closed, they continued north on Highway 15 in Marseilles toward a gas station, which was also closed.
The girls then walked south along Highway 15 on their way back to Courtney’s house.
At 10:34 p.m., Maggie Thomas, a 911 dispatcher, received a call from Milan Najdanovich.
Najdanovich told Thomas,
“I’m on my way into town, and you got two little girls, they’ve got to be 12 or 14 years old, walking on Marseilles blacktop walking in between Hicks Gas and the Shell station. They’ve got no reflectors on, no nttin’ Honey, they’re goin’ to get hit. They’re wearing dark clothes. I’m really afraid somebody’s gonna hit ’em or soemmething”
Within 58 seconds of Najdanovich’s 911 call, a squad car was dispatched to the scene.
As Courtney and Jennifer walked, Courtney’s flip flop broke, and she bent down to fix it.
Mumaugh was driving south on highway 15 at 50 miles per hour when he saw the white legs of a young girl (Courtney), in the northbound lane. Courtney was about 75 feet away. Within a split second, another young girl, Jennifer, appeared out of nowhere in the southbound lane, immediately in front of Mumaugh’s vehicle.
Jennifer was wearing black clothes and had her back to Mumaugh.
Mumaugh immediately swerved his vehicle to the right to avoid striking Jennifer, but Jennifer was right in front of his vehicle. The left side of his vehicle struck Jennifer. Courtney heard a crash as she was bending over. Mumaugh’s vehicle veered off into a ditch on the west side of the highway.
Jennifer sustained serious injuries as a result of the accident, including an injury to her brain. She was in a coma for several months and suffered permanent disabilities.
Defendant Administer’s Aid
Mumaugh immediately exited his vehicle to give aid to Jennifer. Mumaugh had been an emergency medical technician (EMT) for approximately 10 years in the 1990s. He encountered Courtney, who said to him,
“I kept telling her to get out of the road. I kept telling her she shouldn’t walk on the road.”
Mumaugh and Courtney found Jennifer lying face down on the east side of the highway. Her breathing was very labored.
Courtney called 911.
The 911 dispatcher received the call about eight minutes after the Marseilles squad car was dispatched.
A Marseilles ambulance also arrived, rendered aid, and took Jennifer to an area where she could be airlifted to a hospital. Judd then spoke to Courtney, who was sitting in Judd’s vehicle. Judd asked her what happened. Courtney told Judd that Jennifer was walking in the middle of the road, kicking a rock.
Courtney also told others at the scene that Jennifer was walking in the middle of the road and provided a written statement to that effect.
Officer Baudino asked Mumaugh if he had been drinking. Mumaugh responded that he had not and offered to take field sobriety tests. After administering field sobriety tests, Officer Baudino told Mumaugh that he was “good” and that he saw no signs of impairment.
Agreed To Urine Test
Mumaugh agreed to be taken by ambulance to OSF Hospital to give blood and urine samples.
Detective Gordon and Officers Faber and Baudino did not detect any odor of cannabis on Mumaugh’s breath or clothing. At no time did they observe anything that would lead them to believe that Mumaugh was under the influence of drugs. Mumaugh did not show any signs of impairment in his actions or senses.
Mumaugh told the officers that he had “smoked weed” five days earlier (on June 16, 2012), but had not smoked any marijuana on the day of the accident.
A chemical analysis performed at the Illinois State Police Joliet Forensic Science Laboratory detected an undetermined quantity of THC metabolite in Mumaugh’s urine
The Hitter Pipe
While at the accident scene, Mumaugh realized that he had a “hitter” pipe in his vehicle and he knew that the police would probably search the vehicle. To avoid being arrested for possession of the pipe, Mumaugh removed the pipe from the vehicle and discarded it on the side of the road. Mumaugh claimed he did not use the pipe to smoke cannabis at any time that day.
He did not have any cannabis on his person or in his vehicle.
Officer Rogel saw the hitter pipe (a type of pipe commonly used to smoke cannabis) on the ground next to the ambulance that took Mumaugh to the hospital. The pipe was not warm to the touch, and there was nothing Officer Rogel observed that would lead him to believe that the pipe had been used recently.
Officer Rogel secured the pipe as evidence. Marseilles police officers thoroughly searched Mumaugh’s vehicle. They found no items of contraband or illegal substances.
Adam Diss, a certified accident reconstructionist for the LaSalle County State’s Attorney’s Office, was dispatched to the accident scene. Based on his observations, Diss concluded that the crash occurred around the center line of Highway 15.
Mumaugh’s vehicle was traveling south on Highway 15 at approximately 50 miles per hour.
Jennifer was walking south on the same road near the center line when she was struck from behind by Mumaugh’s vehicle.
There was damage to the left front fender and the left upper edge of the windshield of Mumaugh’s vehicle. The headlights were working properly. There was a large amount of change (which Jennifer had had on her person at the time of impact) scattered across the northbound lane and some into the southbound lane of Highway 15.
Trial & Sentence
The trial court found Mumaugh guilty of aggravated DUI.
The court sentenced him to two years’ imprisonment and one year of mandatory supervised release. The court stayed the sentence until the conclusion of appellate proceedings.
Mumaugh filed his notice of appeal that same day.
Strict Liability Offense
On appeal, Mumaugh argues that his conviction should be reversed because the State failed to present evidence sufficient to prove that the defendant’s driving was the proximate cause of the victim’s injuries, a required element of the offense of aggravated DUI.
A person convicted of violating section 11-501(a)(6) is guilty of aggravated DUI if “the person in committing a violation of subsection (a) was involved in a motor vehicle accident that resulted in great bodily harm or permanent disability or disfigurement to another, when the violation was a proximate cause of the injuries.” 625 ILCS 5/11-501(d)(1)(C) (West 2012).
At the time of the accident at issue in this case, Section 11-501(a)(6) of the Code provided, in pertinent part, that
“[a] person shall not drive *** any vehicle in this State while *** there is any amount of a drug, substance, or compound in the person’s breath, blood, or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act.” (Emphasis added.)
Our supreme court has clarified that (1) “aggravated DUI is simply misdemeanor DUI with an aggravating factor, which turns the offense into a felony” (Martin, 2011 IL 109102, ¶ 24); and (2) the essential and underlying criminal act, however, remains the same: driving while under the influence. The physical injury caused to others by driving while under the influence produces the felony. See Quigley, 183 Ill. 2d at 10. See also Way, 2017 IL 120023, ¶ 21.
The Amended Statute
625 ILCS 5/11-501(a)(6) (West 2012). Public Act 99-697, effective July 29, 2016, amended section 11-501(a)(6). The amended statute no longer criminalizes driving with any amount of a drug, substance, or compound in the person’s breath, blood, or urine resulting from the unlawful use or consumption of cannabis.
It now criminalizes having a concentration of THC of 5 nanograms or more of delta-9-[THC] per millileter of whole blood or 10 nanograms or more of delta-9-[THC] per millileter of other bodily substance within two hours of driving. See 625 ILCS 5/11-501(a)(6), 5/11-501.2(a) (West 2016).
However, in this case, we shall apply and construe the prior version of the statute which was in effect at the time of the accident. Section 11-501(a)(6) is a strict liability provision. A person may be convicted of violating this provision (which is a misdemeanor offense) if he is found to have any concentration of THC in his blood or urine, regardless of whether the level of THC was sufficient to impair the defendant’s driving. Martin, 2011 IL 109102; see also People v. Fate, 159 Ill. 2d 267, 260-71 (1994).
Proximate Cause Defense
To obtain a conviction for aggravated DUI, the State is not required to prove that the marijuana or other drug in the defendant’s system (or any impairment caused by such drug) was the proximate cause of the victim’s injuries; rather, it must merely prove beyond a reasonable doubt that the defendant’s driving was a proximate cause of his or her injuries.
However, proximate cause must be proven by the State in such cases; it is not simply presumed along with the presumption of impairment under section 5/11-501(a)(6).
Proximate causation consists of two elements: cause in fact and legal cause.
Cause In Fact
Cause in fact exists when a defendant’s conduct is a material element and a substantial factor in bringing about the injury. A defendant’s conduct is a material element and a substantial factor in bringing about an injury if, absent that conduct, the injury would not have occurred.
“Legal cause,” by contrast, is essentially a question of foreseeability. The relevant inquiry is whether the injury is of a type that a reasonable person would see as a likely result of his or her conduct. In proximate cause disputes, Illinois courts draw a distinction between a condition and a cause.
If the negligence charged does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent, independent act of a third person, the creation of the condition is not the proximate cause of the injury. The test that should be applied in all proximate cause cases is whether the first wrongdoer reasonably might have anticipated the intervening efficient cause as a natural and probable result of the first party’s own negligence.
Applying these principles in First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 257-58 (1999)., our supreme court held that the defendant’s illegal parking of a tanker truck near an intersection was not the proximate cause of a pedestrian’s fatal injuries where, instead of crossing the street at the crosswalk (where the view of oncoming traffic was unobstructed), the pedestrian attempted to jaywalk across the street in the middle of the block, immediately in front of the parked tanker truck, where she could not have seen the oncoming traffic. The Court found that the parked tanker truck was a cause in fact of the pedestrian’s injuries because, had the truck not been parked illegally at that location, the pedestrian’s injuries almost certainly would not have occurred, as her view of the roadway would have been unobstructed. However, the court found that the truck was not the legal cause of the pedestrian’s injuries, because the injury was not the type that a reasonable person would foresee as a likely result of his or her conduct. The court explained that the dispositive question was “whether it was reasonably foreseeable that violating a ‘no parking’ sign at mid-block would likely result in a pedestrian’s ignoring a marked crosswalk at the corner, walking to mid-block, and attempting to cross a designated truck route blindly and in clear violation of the law.”
The court concluded, “[c]learly, it would not.” The court found that the pedestrian’s decision to jaywalk, “while undeniably tragic and regrettable, was entirely of her own making.” The court emphasized that the driver of the tanker truck “neither caused [the pedestrian] to make that decision, nor reasonably could have anticipated that decision as a likely consequence of [his] conduct.”
In Reuter v. Korb, 248 Ill. App. 3d 142 (1993), our appellate court reached a similar conclusion on facts markedly similar to those presented in this case. In Reuter, the defendant was driving south in a dark, rural area at approximately 11:25 p.m. when a pedestrian wearing dark clothing suddenly appeared in the center of the defendant’s lane. Less than one second later, the defendant’s vehicle struck the pedestrian. The defendant was traveling at the posted speed limit (45 miles per hour) at the time. Approximately five minutes before the accident, a motorist had reported to a police officer that he had to swerve to avoid hitting a pedestrian walking in the roadway in the same street. Toxicology reports administered after the accident indicated that the pedestrian had a blood alcohol level of .298.
Our appellate court held that the evidence established that the proximate cause of the accident was the pedestrian’s own conduct because the pedestrian had violated the law and “was not in an area where the [defendant] should have known or expected a pedestrian to be.”
Likewise, in this case, the State failed to prove beyond a reasonable doubt that Mumaugh’s driving was a proximate cause of Jennifer’s injuries. There was no evidence that Mumaugh committed any traffic violation or any negligent act at the time of the accident. He passed all field sobriety tests administered at the scene, and the officers who interacted with him did not smell cannabis on his breath or clothes and found no evidence of impairment. The State notes that Mumaugh was carrying a “hitter” pipe in his car at the time of the accident. However, the pipe was not warm at the time the police found it on the accident scene, the police found nothing to suggest that it had been used recently, and nothing in the defendant’s car or on his person suggesting that he had been smoking marijuana shortly before the accident.
He was driving five miles per hour below the posted speed limit at the time of the accident, and there is no evidence that he was distracted or that he veered outside of the southbound lane of traffic at any point (other than during his attempt to avoid striking Jennifer, who was walking near the middle of the road and, according to Mumaugh, suddenly appeared directly in front of him in the southbound lane).
Mumaugh’s headlights were working properly, and there was no evidence that he could have avoided hitting Jennifer, who appeared immediately in front of his car a split second before he hit her.
In sum, there is no evidence that Mumaugh did anything as far as his driving was concerned that could have foreseeably caused the accident. Moreover, like the pedestrians in Galman and Reuter, Jennifer performed an unforeseeable act that subjected her to extreme danger.
Plenty Of Cases Going The Other Way
The State relies upon several cases wherein our supreme court or our appellate court upheld convictions for aggravated DUI and found that the defendant’s driving was a proximate cause of the victim’s injuries or death. However, in each of these cases, there was evidence suggesting that the defendant driver did something illegal or improper that could have foreseeably caused the accident. See Martin, 2011 IL 109102 (the defendant drove his vehicle across the center line); People v. Merrick, 2012 Il App (3d) 100551 (the defendant’s BAC was .212 and the defendant conceded the element of causation); People v. Swift, 2016 Ill App (3d) 140604 (the defendant had taken his eyes off the road at the time of the accident); People v. Cook, 2011 Il App (4th) 090875 (the defendant’s BAC was .109 to .119 at the time of the accident, which could have allowed the jury to infer that the defendant could have been more alert); People v. Ikerman, 2012 Il App (5th) 110299 (the defendant was drunk and speeding); People v. Merritt, 343 Ill. App. 3d 442 (2003) (the defendant was intoxicated and speeding); People v, Johnson, 393 Ill. App. 3d 127 (2009) (the defendant was impaired and was street racing).
The State correctly notes that, in order to be guilty of aggravated DUI, the defendant need only be a proximate cause of the accident, not the sole proximate cause, and that unexpected hazards appearing in the roadway do not negate the defendant’s responsibility as a matter of law.
However, in this case, there was no evidence suggesting that the defendant’s driving was even a contributing proximate cause of Jennifer’s injuries. All the other evidence suggests that Jennifer’s conduct was the sole proximate cause of her injuries.
In sum, it is simply not foreseeable that a pedestrian would be walking in the middle of a dark, unlit, rural road at 10:30 p.m. on a moonless night wearing dark clothing and no reflectors. Nor would a reasonable person foresee that the accident in the case was the “likely result” of his conduct when he was driving normally (non-negligently), below the posted speed limit with functioning headlights, and within his proper lane of traffic.
Contrary to the State’s argument, the fact that “accidents occur all the time” does not render this particular accident foreseeable.
The dispositive question is whether the defendant reasonably might have anticipated the accident as a “natural and probable result of the [his] own negligence,” i.e., whether Jennifer’s injury was “of a type that a reasonable person would see as a likely result of his or her conduct.” That is clearly not the case here, because there is no evidence that Mumaugh’s driving was improper in any way, and, at the time of the accident, Jennifer was not in an area where the defendant should have known or expected a pedestrian to be.
We will reverse a conviction on the basis of insufficient evidence only where, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the State, the evidence is so insubstantial that no rational trier of fact could find each element of the charged offense beyond a reasonable doubt. This is such a case.
Proximate cause is an element of the offense of aggravated DUI. 625 ILCS 5/11 501(d)(1)(C) (West 2012). Based on the stipulated evidence in this case, no rational trier of fact could find that element proven beyond a reasonable doubt. Thus, even applying the deferential Collins standard, the defendant’s conviction must be reversed.
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