Maryland Attorney General Opinion 96 OAG 128

128 [96 Op. Att’y

CRIMINAL LAW

VEHICULAR MANSLAUGHTER – COMPARISON OF “GROSS
NEGLIGENCE” THAT IS AN ELEMENT OF VIOLATION OF
OFFENSE DEFINED IN CRIMINAL LAW ARTICLE §2-209 WITH
“CRIMINAL NEGLIGENCE” THAT IS AN ELEMENT OF THE
OFFENSE DEFINED IN CRIMINAL LAW ARTICLE §2-210

December 21, 2011

The Honorable Joseph I. Cassilly
State’s Attorney for Harford County

You have asked for our opinion on two criminal statutes that
establish offenses for homicide resulting from the negligent
operation of a vehicle or vessel. In particular, you ask whether there
is any distinction between the standards of culpability for those two
offenses.

One statute, codified at Annotated Code of Maryland, Criminal
Law Article (“CR”), §2-209, defines the crime of “manslaughter by
vehicle or vessel” and requires proof of “gross negligence.” The
other statute, enacted this year and codified at CR §2-210, defines
the crime of “criminally negligent manslaughter by vehicle or
vessel.” It requires proof of a type of negligence referred to as
“criminal negligence.”

In our opinion, CR §2-209 states a higher degree of culpability
than that required by CR §2-210. The distinction between the two
crimes lies in the defendant’s consciousness of the risk associated
with his or her conduct. As we explain below, to prove “gross
negligence” under CR §2-209, the prosecution must show that the
defendant was conscious of the risk to human life posed by his or her
conduct and acted with “wanton or reckless disregard for human
life.” To prove “criminal negligence” under CR §2-210, the
prosecution must show that the defendant should have been aware,
but failed to perceive, that his or her conduct created a “substantial
and unjustifiable risk” to human life and that the failure to perceive
that risk was a “gross deviation” from the standard of care that a
reasonable person would exercise.
Gen. 128] 129

I

Statutory Provisions

Both statutes concern homicides committed “as a result of the
“[defendant’s] driving, operating, or controlling a vehicle or
vessel....” Both define the term “vehicle” to include a motor vehicle,
streetcar, locomotive, engine, and train. CR §2-209(a); CR §2-
210(a). The statutes differ primarily in the designation of the
offense, the standard of culpability, and the potential penalties.1

A. CR §2-209: Manslaughter by Vehicle or Vessel

CR §2-209 provides, in pertinent part:

(b) A person may not cause the death of
another as a result of the person’s driving,
operating, or controlling a vehicle or vessel in
a grossly negligent manner.

(c) A violation of this section is manslaughter
by vehicle or vessel.

(d) A person who violates this section is
guilty of a felony and on conviction is subject
to imprisonment not exceeding 10 years or a
fine not exceeding $5,000 or both.

This statute, which has been part of Maryland criminal law for more
than 70 years,2 also provides model language for a charging
document and states that the charging document need not set forth
the manner or means of death. CR §2-209(e).

1
CR §§ 2-209 and 210 are not the only vehicular homicide
statutes. See CR §§2-501 et seq. (creating offenses of homicide resulting
from the negligent operation of a vehicle while the defendant is under the
influence of alcohol, drugs, or controlled dangerous substances).
2
As enacted in 1941, the statute applied to the operation of land-
based vehicles. Chapter 414, Laws of Maryland 1941, then codified at
Annotated Code of Maryland, Article 27, §436A. It was extended to the
operation of motor boats in 1949. Chapter 5, Laws of Maryland 1949. It
was later recodified as §388 in the 1957 Code and again in its current
location when the Criminal Law Article was enacted. Chapter 26, §2,
Laws of Maryland 2002.
130 [96 Op. Att’y

B. CR §2-210: Criminally Negligent Manslaughter by Vehicle
or Vessel

A recent addition to Maryland criminal law,3 CR §2-210
provides, in pertinent part:

(b) A person may not cause the death of
another as the result of the person’s driving,
operating, or controlling a vehicle or vessel in
a criminally negligent manner.

(c) For purposes of this section, a person acts
in a criminally negligent manner with respect
to a result or a circumstance when:

(1) the person should be aware, but fails
to perceive, that the person’s conduct creates
a substantial and unjustifiable risk that such a
result will occur; and

(2) the failure to perceive constitutes a
gross deviation from the standard of care that
would be exercised by a reasonable person.

(d) It is not a violation of this section for a
person to cause the death of another as the
result of the person’s driving, operating, or
controlling a vehicle or vessel in a negligent
manner.

(e) A violation of this section is criminally
negligent manslaughter by vehicle or vessel.

(f) A person who violates this section is
guilty of a misdemeanor and on conviction is
subject to imprisonment not exceeding 3 years
or a fine not exceeding $5,000 or both.

3
The statute was enacted in 2011. Chapter 334, Laws of Maryland
2011. Similar bills had been introduced at each session of the Legislature
since 2006.
Gen. 128] 131

II

Discussion

Your question arises because the Maryland appellate courts
have sometimes appeared to equate the concepts of “criminal
negligence” and “gross negligence.” In State v. Gibson, 4 Md. App.
236, 242, 242 A.2d 575 (1968), for example, the Court of Special
Appeals stated that “where a charge of involuntary manslaughter is
predicated on negligently doing some act lawful in itself, or by
negligently failing to perform a legal duty ... , the negligence ... must
be gross or criminal, viz., such as manifests a wanton or reckless
disregard of human life.” See also State v. DiGennaro, 415 Md.
551, 566, 3 A.3d 1201 (2010) (quoting Gibson). You observed that
CR §§2-209 and 2-210 might be redundant of each other if the terms
“criminally negligent” and “grossly negligent” were viewed as
interchangeable. You asked whether CR §2-210, which is the more
recent of the two laws, might be deemed to replace CR §2-209,
which carries a higher penalty.

A. Gross Negligence - Adoption of Common Law Standard in
CR §2-209

Common law manslaughter 4 and vehicular manslaughter
under CR §2-209 “require the same proof of negligence, i.e., gross
negligence.” Forbes v. State, 324 Md. 335, 340, 597 A.2d 427
(1991); see also Pagotto v. State, 127 Md. App. 271, 298, 732 A.2d
920 (1999) (stating that the vehicular manslaughter offense
“completely incorporated the gross negligence standard of the
common law felony”), aff’d, 361 Md. 528, 762 A.2d 97 (2000).
Gross negligence is established when the conduct of the defendant,
considering all the factors of the case, was “such that it amounted to
a wanton or reckless disregard for human life.” Duren v. State, 203
Md. 584, 588, 102 A.2d 277 (1954); see also Dehogue v. State, 190
Md. App. 532, 547, 989 A.2d 759 (2010) (applying the standard in
a vehicular manslaughter case). Gross negligence requires “that the
defendant be conscious of the risk to human life [posed] by his or
her conduct.” Dishman v. State, 352 Md. 279, 299, 721 A.2d 699
(1998).

4
The Legislature has designated the penalty and the contents of an
indictment for the common law offense. CR §§2-207, 2-208.
132 [96 Op. Att’y

B. Criminal Negligence - Distinct Standard of Culpability in CR
§2-210

To prove that a defendant has committed vehicular homicide
under CR §2-210, the prosecution must show that the defendant
acted in a “criminally negligent manner.” The statute elaborates on
that standard in a way that distinguishes it from gross negligence.
Moreover, the General Assembly provided, in uncodified language,
explicit direction as to how the standard is to be interpreted.

1. Codified Language - Failure to Perceive Risk

Under CR §2-210, the prosecution need not establish that the
defendant was conscious of the risk posed by his or her conduct.
While CR §2-209 requires proof of the defendant’s “conscious
disregard” of the risk posed by the conduct, CR §2-210(c) specifies
that a person “acts in a criminally negligent manner when the person
should be aware, but fails to perceive, that the person’s conduct
creates a substantial and unjustifiable risk that such a result will
occur” and that the failure to perceive the risk “constitutes a gross
deviation from the standard of care that would be exercised by a
reasonable person.” The mental state required for a violation of CR
§2-210 thus differs from that required for a violation of CR §2-209.5

Differentiating two similarly phrased standards, a New York
court explained:

The essential distinction between
manslaughter in the second degree and
criminally negligent homicide is the state of
mind of the actor. In the former, the actor is
aware of the substantial and unjustifiable risk
of death inherent in his acts but consciously
chooses to disregard it in a gross deviation
from a reasonable standard of care. ... The
latter offense requires the actor to fail to
perceive the risk of death inherent in his act
and for this failure to constitute a gross
deviation from a reasonable standard of

5
The types of negligence required by both statutes are distinct
from ordinary negligence. See CR § 2-210(d); United States v.
Gomez-Leon, 545 F.3d 777, 793 (9th Cir. 2008) (noting that states rarely
criminalize homicide resulting from ordinary negligence).
Gen. 128] 133

care.... The “underlying conduct” is the same
for both crimes. Both felonies require “risk of
death inherent in [the defendant's act]” ...

People v. Heber, 192 Misc. 2d 412, 418-419, 745 N.Y.S.2d 835
(N.Y. Sup. Ct. 2002) (internal citations omitted).6

The Supreme Court of Connecticut, describing the state of
mind of a defendant as “the most elusive element of the crime
charged,” similarly explained:

The dividing line between manslaughter in the
second degree, of which the defendant was
convicted, and criminally negligent homicide
is especially thin. To be guilty of the former,
the defendant must be aware of and
consciously disregard a substantial and
unjustifiable risk that death will occur. ... To
be guilty of criminally negligent homicide,
however, the defendant must fail to perceive
a substantial and unjustifiable risk that death
will occur. ... Therefore, the issue that
distinguishes the two criminal offenses is
whether the defendant subjectively realized
and chose to ignore a substantial risk of death

6
The New York court also differentiated between “negligence,”
as used in civil cases, and “criminal negligence”:
Criminal liability cannot be predicated on every
act of carelessness resulting in death ..... The
carelessness required for criminal negligence is
appreciably more serious than that for ordinary
civil negligence[;]the carelessness “must be such
that its seriousness would be apparent to anyone
who share[s] the community’s general sense of
right and wrong”.... Criminal negligence thus
requires “some serious blameworthiness in the
conduct that caused [the death]”... or some
culpable “risk creation” ....
192 Misc. 2d at 419 (internal citations omitted).
134 [96 Op. Att’y

... or merely failed to realize that he was
creating a substantial risk of death.

State v. Ray, 228 Conn. 147, 155-56, 635 A.2d 777 (1993). See also
United States v. Gomez-Leon, 545 F.3d 777, 791 (9th Cir. 2008)
(criminal negligence is “a degree of culpability higher than ordinary
negligence, but lower than recklessness”).

2. Uncodified Language - Expression of Legislative
Intent

When it enacted the law that created CR §2-210, the
Legislature included uncodified language in the bill to clarify its
intent as to the standard of culpability:

It is the intent of the General Assembly
that the term “gross deviation from the
standard of care” in [CR] §2-210(c)(2) ..., as
enacted by Section 1 of this Act:

(1) be interpreted synonymously with the
term “gross deviation from the standard of
care” under §2.02(2)(d) of the Model Penal
Code of the American Law Institute; and

(2) is a separate and distinct standard
from the “gross negligence” standard that is
used by and interpreted under §2-209 of the
Criminal Law Article.

Chapter 334, §2, Laws of Maryland 2011.7

i. Reference to Model Penal Code

The Model Penal Code definition to which the Legislature
referred appears in a provision defining the mental states associated
with criminal offenses. See 10A Uniform Laws Annotated, Model

7
This language was added by amendment while the bill was in the
Senate. It was apparently designed to respond to concerns expressed
about whether prior versions of the bill could be interpreted to either
criminalize simple negligence or duplicate the “gross negligence” standard
in CR §2-209. See Office of Public Defender Position on Proposed
Legislation - House Bill 388 (February 19, 2010).
Gen. 128] 135

Penal Code (“MPC”) §2.02. The provision lists four mental states
in descending order of culpability, with purposeful conduct at the
highest level, followed by knowing conduct, reckless conduct, and,
at the lowest level, criminally negligent conduct. See MPC
§2.02(2); see also Liparota v. United States, 471 U.S. 419, 423 n.5
(1985). The model language cited by the General Assembly is as
follows:

(d) Negligently.

A person acts negligently with respect to
a material element of an offense when he
should be aware of a substantial and
unjustifiable risk that the material element
exists or will result from his conduct. The risk
must be of such a nature and degree that the
actor's failure to perceive it, considering the
nature and purpose of his conduct and the
circumstances known to him, involves a gross
deviation from the standard of care that a
reasonable person would observe in the actor's
situation.

MPC §2.02(2)(d) (emphasis added).8

8
Paragraphs (a) - (c) of MPC §2.02(2) provide:
(a) Purposely.
A person acts purposely with respect to a
material element of an offense when:
(i) if the element involves the nature of his
conduct or a result thereof, it is his conscious
object to engage in conduct of that nature or to
cause such a result; and
(ii) if the element involves the attendant
circumstances, he is aware of the existence of
such circumstances or he believes or hopes that
they exist.
(b) Knowingly.

(continued...)
136 [96 Op. Att’y

The MPC standard for criminally negligent conduct, like the
standard of culpability set forth in CR §2-210, contemplates
circumstances in which the person should be aware of a substantial
and unjustifiable risk resulting from his or her conduct and the
failure to perceive the risk itself amounts to a gross deviation from
the standard of care. By contrast, the MPC “recklessness” standard
is similar to the gross negligence standard that underlies CR §2-209;
both require findings that the defendant consciously disregarded the
risk of the consequences of the conduct in question and “gross[ly]”
deviated from the standard of conduct that a reasonable person
would observe. See MPC §2.02(2)(c).9

8
(...continued)
A person acts knowingly with respect to a
material element of an offense when:
(i) if the element involves the nature of his
conduct or the attendant circumstances, he is
aware that his conduct is of that nature or that
such circumstances exist; and
(ii) if the element involves a result of his
conduct, he is aware that it is practically certain
that his conduct will cause such a result.
(c) Recklessly.
A person acts recklessly with respect to a
material element of an offense when he
consciously disregards a substantial and
unjustifiable risk that the material element exists
or will result from his conduct. The risk must be
of such a nature and degree that, considering the
nature and purpose of the actor's conduct and the
circumstances known to him, its disregard
involves a gross deviation from the standard of
conduct that a law-abiding person would observe
in the actor's situation.
While the Model Penal Code includes provisions on manslaughter and
negligent homicide, see MPC §§210.3, 210.4, it does not have separate
provisions relating specifically to vehicular homicides.
9
The Court of Special Appeals has described the relationship
between the MPC and Maryland definition of “reckless” for purposes of
(continued...)
Gen. 128] 137

In short, the criminal negligence standard in the MPC and CR
§2-210 omits the “conscious disregard” requirement and instead
focuses on the culpability of the defendant’s failure to perceive.
When “criminal negligence” is interpreted in accordance with the
MPC definition, it refers to a mental state distinct from, and less
culpable than, the mental state described by “gross negligence.”

ii. Legislative Confirmation of Distinction from CR
§2-209

The Legislature further stated in the uncodified language its
“intent that... ‘gross deviation from the standard of care’ ... is a
separate and distinct standard from the ‘gross negligence’ standard
that is used by and interpreted under §2-209 of the Criminal Law
Article.” Chapter 334, §2(2), Laws of Maryland 2011. This express
and unambiguous rejection of the gross negligence standard of CR
§2-209 negates any inference that §2-210 “criminal negligence” is
redundant of that standard. Cf. Tereshuk v. State, 66 Md. App. 193,
197, 503 A.2d 254 (1986) (finding unambiguous an uncodified
statement of legislative intent that one statutory term be substituted
for another).

III

Conclusion

In our opinion, the language of CR §2-210, as well as
uncodified language in the bill that enacted it, makes clear that the
Legislature intended to establish a standard of culpability distinct
from the common law standard of culpability applicable to
manslaughter under CR §2-209. The distinction between the two

9
(...continued)
the statute criminalizing “reckless endangerment” (CR §3-204) this way:
Although Maryland has not adopted the Model
Penal Code itself or its definition of “reckless,” a
part of that definition, contained in [MPC] §
2.02(2)(c), was tracked, almost word for word, by
the Court of Appeals in Minor v. State, [326 Md.
436, 443, 605 A.2d 138 (1992)].
Albrecht v. State, 97 Md. App. 630, 648, 632 A.2d 163 (1993), rev’d on
other grounds, 336 Md. 475 (1994). See also Minor, 326 Md. at 442 n.1
(explicitly not adopting either the MPC or its definition of “recklessness”).
138 [96 Op. Att’y

crimes lies in the defendant’s consciousness of the risk associated
with his or her conduct. To prove “gross negligence” under CR §2-
209, the prosecution must show that the defendant was conscious of
the risk to human life posed by his or her conduct and acted with
“wanton or reckless disregard for human life.” To prove the
“criminal negligence” under CR §2-210, the prosecution must show
that the defendant should have been aware, but failed to perceive
that his or her conduct created a “substantial and unjustifiable risk”
to human life and that the failure to perceive that risk was a “gross
deviation” from the standard of care that a reasonable person would
exercise. Accordingly, CR §2-210 does not replace CR §2-209, but
rather states a lesser degree of culpability.

Douglas F. Gansler
Attorney General

Ann MacNeille
Assistant Attorney General

Robert N. McDonald
Chief Counsel
Opinions and Advice