Article Giving Mental Culpability the Bird: How State v. Bird Secures the Presumption That Traffic Offenses Are Strict Liability

• Publication year: 2015
• Pages: 12
• Citation: Vol. 28 No. 6 Pg. 12

Article Giving Mental Culpability the Bird: How State v. Bird Secures the Presumption that Traffic Offenses are Strict Liability Vol. 28 No. 6 Pg. 12 Utah Bar Journal December, 2015

November, 2015

Jonathan R. Hornok & Mariah L. Hornok, J.

The Utah Supreme Court, in its recent opinion in State v. Bird (Bird II), 2015 UT 7, 345 P.3d 1141, has put to rest a decade’s long error in Utah Traffic Code case law. Overturning prior Utah Court of Appeals precedent in State v. Vialpando, 2004 UT App 95, 89 P.3d 209, and State v. Bird (Bird I), 2012 UT App 239, 286 P.3d 11, the high court declared that traffic offenses are presumed to be strict liability.

Although issued without fanfare, Bird II is likely to be one of the most relevant supreme court opinions for the average Utahn this year. This opinion impacts all traffic cases, which constitute a large number of the cases filed in this state. Last year, there were 416,778 traffic cases filed in Utah district and justice courts. See Administrative Office of the Courts, 2015 Annual Report to the Community 24–25 (2015). Traffic cases constituted 78.95% of the total 548,092 criminal cases filed and 42.84% of all cases filed in 2014. See id. In terms of population, about one traffic case is filed for every seven people. See id.; State & County QuickFacts: Utah, United States Census Bureau (Mar. 31, 2015, 3:14 PM), http://quickfacts.census.gov/qfd/states/49000.html. Accordingly, the supreme court’s opinion in this area is worth an extra degree of consideration. But in order to appreciate the significance of the supreme court’s holding in Bird II, it is helpful to review the background statutory framework and case law surrounding this issue.

Dueling Presumptions of Mental Culpability in Traffic Offenses

In 1973, the Utah Legislature enacted section 76-2-101 of the Utah Code, which set out the general requirement that crimes include a culpable mental state. As originally enacted, that section provided,

No person is guilty of an offense unless his conduct is prohibited by law and:

(1) He acts intentionally, knowingly, recklessly or with criminal negligence with respect to each element of the offense as the definition of the offense requires; or

(2) His acts constitute an offense involving strict liability.

1973 Utah Laws 592. But not every statute in the criminal law provides a culpable mental state. Some of these silent offenses are intended to be strict liability – requiring no mental culpability – but most are not. So at the same time, the legislature also enacted section 76-2-102. That section provided a gap-filler mental-state requirement for silent statutes and created a strong presumption against strict liability. It provided,

Every offense not involving strict liability shall require a culpable mental state, and when the definition of the offense does not specify a culpable mental state, intent, knowledge, or recklessness shall suffice to establish criminal responsibility. An offense shall involve strict liability only when a statute defining the offense clearly indicates a legislative purpose to impose strict liability for the conduct by use of the phrase “strict liability” or other terms of similar import.

Id. Then, in 1974, the Utah Supreme Court held, on the basis of these statutes, that traffic offenses, like driving under the influence (DUI), require proof of a culpable mental state. Greaves v. State, 528 P.2d 805, 807 & n.5 (Utah 1974). And in construing the DUI statute, which was silent with regard to mental state, the supreme court applied the presumption and gap filler provided in section 76-2-102. Id.

But in 1983, the legislature superseded Greaves by explicitly excluding traffic offenses from the mental-state requirements upon which the supreme court had based its opinion. See 1983 Utah Laws 441–42; Greaves, 528 P.2d at 807 & n.5 (citing Utah Code Ann. §§ 76-2-101, -102 (1974)). The 1983 amendments added the Traffic Code exception to section 76-2-101. As amended, that section provided,

No person is guilty of an offense unless his conduct is prohibited by law and:

(1) He acts intentionally, knowingly, recklessly or with criminal negligence with respect to each element of the offense as the definition of the offense requires; or

(2) His acts constitute an offense involving strict liability.

These standards of criminal responsibility shall not apply to the violations set forth in Title 41, Chapter 6, [Traffic Code,] unless specifically provided by law.

1983 Utah Laws 441–42 (legislative format in original).^[1] In the context of the supreme court’s holding in Greaves, the legislative intent is powerfully clear: traffic offenses are different...