Vehicular Homicide Charge Dismissed by the Court

03/23/2010
CONTACT INFO: Charles Branson Douglas County District Attorney 785-841-0211 cbranson@douglas-county.com On March 22, Douglas County District Court Judge Sally Pokorny granted a Defendant's Motion to Dismiss a Vehicular Homicide charge. The Defendant, Michael Peng, 23, was charged as a result of his operation of his vehicle at approximately 7:40 a.m. on April 7, 2009. The investigation showed Peng struck and killed former University of Kansas professor Wallace Mays, 80, as he was on his morning walk. Mr. Mays was crossing the driveway at 255 N. Michigan, the entrance to the apartment complex where Peng lived at the time. The investigation also indicated Mr. Peng chose to drive his vehicle that morning after failing to completely clear the windshield of a heavy frost from the previous night. Peng's car was facing east, into the sun, when he accelerated from the stop sign and struck Mays. Vehicular Homicide, a Class A person misdemeanor, requires proof the death was the result of operating a motor vehicle in a manner that creates an unreasonable risk of injury to others and constitutes a material deviation from what a reasonable person would observe under the same circumstances. The District Attorney's office argued that by operating a car with the early morning sun glaring on a windshield that Peng chose not to sufficiently clear; he created an unreasonable risk of injury to others. "When I reviewed the case, I believed the elements of the statute were met due to the fact he drove the car without completely scraping the windshield and then did not insure the crosswalk was clear before proceeding," Branson said. Peng's motion asserted the circumstances showed only negligence and there was not enough evidence for a jury to consider the case. In making her ruling, Judge Pokorny observed the Kansas Court of Appeals and Kansas Supreme Court have ruled vehicular homicide cases require more than inattentive driving, it requires aggravating factors establishing material deviation. The Judge found there were no aggravating factors that would justify submitting the evidence to a jury and granted the motion to dismiss. "We knew when we reviewed the case for charging the evidence could be viewed by reasonable jurors in different ways, but I believed there was enough evidence of aggravating circumstances that the matter should be presented to a jury to decide the line between negligence and criminal responsibility. Obviously, the Judge viewed the evidence differently and judges get to make those decisions," Branson said. "Given the current state of the law and the cases that have interpreted it, the Kansas Legislature should really consider a thorough review of this criminal statute." -30-

Media Contact:
Cheryl L. Wright - Assistant to the District Attorney
District Attorney's Office
785-841-0211
cwright@douglas-county.com