SEQ CHAPTER \h \r 1CR32-121 04/04/06

 

GROSSLY NEGLIGENT OPERATION OF A MOTOR VEHICLE, 23 V.S.A. 1091(b),

 

with transition to NEGLIGENT OPERATION OF A MOTOR VEHICLE, 23 V.S.A. 1091(a)

 

Grossly Negligent Operation of a Motor Vehicle

The State has charged (Def)_______________ with grossly negligent operation of a motor vehicle on a public highway, as follows:

[Read the charge.]

Every crime is made up of essential elements. Before (Def)_______________ can be found guilty of the charge, the State must have proven each of the essential elements beyond a reasonable doubt. In this case, the essential elements are that on the date and at the place alleged,

(1) (Def)_______________;

(2) operated a motor vehicle;

(3) the operation occurred on a public highway; and

(4) (Def)_______________ operated [his] [her] motor vehicle in a grossly negligent manner.

The first essential element is that (Def)_______________ is the person who committed the alleged acts.

The second essential element is that (Def)_______________ operated a motor vehicle.

The term operate, as applied to motor vehicles, includes driving, and it also includes an attempt to operate. The word operate covers all matters and things connected with the presence and use of motor vehicles on the highway.

The definition of motor vehicle includes all vehicles propelled or drawn by power other than muscular power [except tractors used entirely for work on the farm, vehicles running only upon stationary rails or tracks, motorized highway building equipment, road making appliances, snowmobiles, all-terrain vehicles or implements of husbandry, or tracked vehicles].

The third essential element is that (Def)_______________ operated the motor vehicle on a public highway. The term public highway is defined to include all parts of any roadway, street, bridge, culvert, [square, fairground] or other place open temporarily or permanently to public or general circulation of vehicles [and it also includes a way laid out under authority of law].

The last essential element is that (Def)_______________ operated [his] [her] motor vehicle in a grossly negligent manner.

Negligence is a failure by a driver to exercise ordinary care under the circumstances. Gross negligence is more than ordinary negligence. Gross negligence is not an absolute term, but a relative one. The degree of care required increases with the risk of harm. Gross negligence is conduct involving a gross deviation from the care that a reasonably prudent person would have exercised under the same or similar circumstances. Gross negligence may consist of not doing something which a reasonably prudent person would do; it may also consist of doing something which a reasonably prudent person would not do.

[In deciding whether (Def)_______________ operated [his] [her] vehicle in a grossly negligent manner, you may consider Vermont state law concerning the following rules of the road:]

[No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions, having regard for the actual and potential hazards then existing. Speed shall be controlled as necessary to avoid colliding with any person, vehicle or other object on or adjacent to the highway.]

[If traffic-control signals are not in operation, the driver of a vehicle shall yield the right of way, slowing down or stopping if necessary, to a pedestrian crossing the roadway within a crosswalk.]

[Every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, shall give warning by sounding the horn when necessary, and shall exercise proper precaution upon observing any child or any obviously confused or incapacitated person upon a roadway.]

[Drivers have a duty to maintain proper and reasonable control over their vehicles. The test of control is the ability to stop as quickly and as easily as the circumstances may reasonably be expected to require.]

[Drivers also have a duty to look out for other persons and property on the highways, and to use reasonable diligence to avoid inflicting injuries on such persons or property. The circumstances of each case must determine the degree of alertness that is necessary.]

[Safety rules are not absolute. You may consider them in determining whether or not (Def)_______________s conduct was grossly negligent under the circumstances.]

All of the elements of the offense must occur and be present at the same time. If the State has proven each of the essential elements of grossly negligent operation of a motor vehicle on a public highway, then you will be done with your deliberations, and you must return a verdict that (Def)_______________ is guilty of that charge.

Transition

If you decide that the State has not proven each of the essential elements of grossly negligent operation of a motor vehicle on a public highway, then you must consider whether (Def)_______________ is guilty of the lesser offense of negligent operation of a motor vehicle on a public highway; or, if you are unable to agree upon a verdict concerning the charge of grossly negligent operation, after all reasonable efforts to reach a unanimous verdict, then you may move on to consider the lesser offense of negligent operation.

Negligent Operation of a Motor Vehicle

If you reach the point of deciding whether or not the State has proven the lesser offense of negligent operation of a motor vehicle on a public highway, then you must consider whether the State has proven the following essential elements beyond a reasonable doubt: that on the date and at the place alleged:

(5) (Def)_______________;

(6) operated a motor vehicle;

(7) the operation occurred on a public highway; and

(8) (Def)_______________ operated [his] [her] motor vehicle in a negligent manner.

The first three elements of negligent operation are the same as they are for grossly negligent operation. The State must have proven that (Def)_______________ operated a motor vehicle on a public highway. When you consider those elements, you should follow the same instructions I have already given you.

The last essential element is that (Def)_______________ operated [his] [her] motor vehicle in a negligent manner. Negligence is a failure by a driver to exercise ordinary care under the circumstances. Ordinary care is the care that a prudent or careful person would exercise under the same or similar circumstances. Negligence may consist of not doing something which a reasonably prudent person would do; it may also consist of doing something which a reasonably prudent person would not do.

Negligence is not an absolute term, but a relative one. In deciding whether (Def)_______________ failed to exercise ordinary care, you must consider all the surrounding circumstances. The amount of care exercised by a reasonably prudent person varies in proportion to dangers that are known or should be known.

[In deciding whether (Def)_______________ operated [his] [her] vehicle in a negligent manner, you may consider the instructions I have already given you concerning the rules of the road. Once again, safety rules are not absolute, but you may consider them in determining whether or not (Def)_______________s conduct was negligent under the circumstances of this case.]

If the State has not proven each of the essential elements of negligent operation of a motor vehicle on a public highway beyond a reasonable doubt, you must find (Def)_______________ not guilty. However, if the State has proven all of the essential elements beyond a reasonable doubt, then you must return a verdict that [he] [she] is guilty of this offense.

Presumption of Innocence

When considering the degree of negligence that might be involved in this case, the presumption of innocence plays two roles. First, (Def)_______________ is presumed to be innocent of any crime. Second, if you find beyond a reasonable doubt that [he] [she] is guilty of operating his vehicle in a negligent manner, then you must give [him] [her] the benefit of any reasonable doubt in deciding the degree of negligence involved. In other words, you must apply the presumption of innocence, and weigh it against the evidence at each step of your deliberations. Nevertheless, if all of the evidence, weighed along with the presumption of innocence, convinces you beyond a reasonable doubt that (Def)_______________ is guilty of grossly negligent operation of a motor vehicle, then you must find [him] [her] guilty of the highest degree of the offense that the State has proven beyond a reasonable doubt.

Verdict

Your verdict will be one of three possible verdicts:

Not guilty of any crime; or

Guilty of negligent operation of a motor vehicle; or

Guilty of grossly negligent operation of a motor vehicle.