Aiding and Abetting Involuntary Manslaughter and Negligent Homicide: An Unprincipled Extension of Principal Liability
![handle is hein.journals/armylaw1991 and id is 795 raw text is: Aiding and Abetting Involuntary Manslaughter and Negligent Homicide:
An Unprincipled Extension of Principal Liability
Major Frank W. Fountain
Office of the Staff Judge Advocate
MacDill Air Force Base, Florida
Introduction
Drunk driving kills. In 1989 alone, 22,415 people died
in alcohol-related traffic accidents in America.' Society
has demanded a solution.2 Federal and state governments
have responded with great vigor.3
Not surprisingly, the military services have responded
aggressively as well. Each military department has
established comprehensive programs to combat alcohol
abuse.4 These programs seek to 'deglamorize alcohol
consumption,5 to identify and treat abusers,6 and, when
appropriate, to sanction offenders.7 In administrative pro-
ceedings, an offender faces reprimand,s loss of driving
privileges,9 and even discharge.10 A drunk driver, more-
over, may face criminal prosecution. If no death resulted
from the offender's conduct, he or she may be prosecuted
for drunk or reckless driving; while the offenses for
which he or she may be prosecuted when death results
can range from negligent homicide12 to murder.'3
Although in drunk driving incidents the person facing
criminal sanctions usually is the driver of the vehicle,
other persons who in some way have assisted the driver
also may risk prosecution. Other service members who
may be charged include passengers, individuals who
provided the drunk driver with a vehicle or keys to a
vehicle, or even persons who provided the alcoholic bev-
erages the drunk driver consumed. The criminal liabilities
of these individuals might be founded on their own
misconduct-on theories of culpable negligence or even
simple negligence-or they may derive from their abet-
ting the driver's criminally negligent act. In United States
v. Brown'4 the Court of Military Appeals granted review
to determine whether one can be liable as an aider and
abettor to another who commits a criminally negligent
IIn the same year, an additional 345,000 people suffered injuries-86,000 of them serious-from collisions involving alcohol. See generally J. Fell &
C. Nash, National Highway Traffic Safety Administration, Intoxicated Drivers and Pedestrians on U.S. Public Roads: Collision Losses and Changes in
the 1980's (1989).
C 2The birth and growth of organizations such as Mothers Against Drunk Drivers (M.A.D.D.) and Students Against Drunk Drivers (S.A.D.D.) reflect
and fuel this demand.
3A federal statute allows a state to receive an incentive grant of up to eighty-five percent of its regular federal highway safety fund apportionment if
the state enacts various antidrunk driving programs, including automatic license revocation procedures and prohibitions against alcohol consumption in
a vehicle's passenger section; the amount of the incentive varies depending on the programs enacted. See Drunk Driving Prevention Act § 9002(a), 23
U.S.C. 1 410 (1988), amended by Act of Nov. 5, 1990, 23 U.S.C.A. § 410 (West Supp. 1991).
At present, all fifty states have raised the minimum drinking age to twenty-one. Five states have lowered the minimum blood alcohol content for
drunk driving from .10% to .08%. Twenty-nine states and the District of Columbia have adopted automatic license revocation procedures. Nine states
allow judges to require a convicted drunk driver to install in his or her car a device that prevents the car from starting when a sensor on the device
detects alcohol on the driver's breath. Some states also have extended civil liability to social hosts who provide alcohol to guests who later injure
someone while driving. See generally R. Gastel, Drunk Driving and Liquor Liability, Insurance Information Institute Report, January 1991 (1991)
[hereinafter Institute Report].
4See, e.g., Army Reg. 600-85, Alcohol and Drug Prevention and Control Program (3 Dec. 1986).
5See id., para. 2-5.
'See Id., ch. 3.
7See, e.g., Army Reg. 190-5, Military Police: Motor Vehicle Traffic Supervision (8 July 1988). This regulation mandates that a soldier receive a
general officer letter of reprimand if, while serving on active duty as a commissioned officer, warrant officer, or non-commissioned officer, he or she:
(1) is convicted of drunk driving; (2) refuses to take or fails to complete legally requested tests to measure blood alcohol content; (3) operates a motor
vehicle on a military installation when his or her blood alcohol content equals or exceeds 0.10%; or (4) operates a motor vehicle off post when his or
her blood alcohol content equals or exceeds the state law standard. Id., para. 2-7a. General officers, moreover, may issue a written reprimand to active
duty enlisted soldiers in the rank of specialist and below under similar circumstances. Id., pars. 2-7b. The soldier's commander also must review the
soldier's records to determine if an administrative reduction, a bar to reenlistment, or an administrative discharge are warranted. Id., pars. 2-7c.
'Id., pars. 2-7.
9Id., pars. 2-5.
10See Army Reg. 635-200, Enlisted Personnel: Personnel Separations, ch. 9 (20 July 1984) (separation for alcohol or drug abuse rehabilitation failure);
id., ch. 14 (serious misconduct).
Uniform Code of Military Justice art. 111, 10 U.S.C. 5 911 (1988) [hereinafter UCMJ].
121d. art. 134. Under this article, a driver who kills another person may be found guilty of negligent homicide if, through simple negligence, he or she
caused the death of another person. See Manual for Courts-Martial, United States, 1984, Part IV, par. 85 [hereinafter MCM, 1984]; United States v.
Spicer, 20 M.J. 188 (C.M.A.) (summary disposition), cert. denied, 474 U.S. 924 (1985).
13UCMJ art. 118(3). Under this article, a driver who kills another person may be found guilty of murder if he or she was so intoxicated that his or her
driving constituted an act inherently dangerous to others and showed a wanton disregard for human life in general. See United States v. Vandenack, 15
M.J. 230 (C.M.A. 1983).
1422 M.J. 448 (C.M.A. 1986).
NOVEMBER 1991 THE ARMY LAWYER o DA PAM 27-50-227 3
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Aiding and Abetting Involuntary Manslaughter and Negligent Homicide: An Unprincipled Extension of Principal Liability
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