Italian Law on the Vehicular Homicide: Medical Legal Issues and Comparative Analysis G

e214 G. Montanari Vergallo et al.

Review Clin Ter 2017; 168 (3):e214-219. doi: 10.7417/T.2017.2009

Italian law on the vehicular homicide: medical legal issues and comparative analysis G. Montanari Vergallo1, E. Marinelli1, N.M. di Luca1, V. Masotti2, R. Cecchi2, S. Zaami1

1Department of Anatomical, Histological, Medicolegal and Orthopaedic Sciences, “Sapienza” University of Rome, Rome; 2Depart- ment of Biomedical, Biotechnological and Translational Medicine, University of Parma, Parma, Italy

Abstract the need to introduce more effective tools for prevention and repression. According to the World Health Organization, Law no. 41/2016, enacted after a parliamentary debate characte- road accidents are the ninth cause of death among adults, rized by a strong media pressure, intends to give a strong response to the first among youths aged fifteen to nineteen and the the growing social alarm caused by road accidents causing deaths. In second among adolescents aged ten to fourteen and young this perspective, it introduced the categories of road homicide and road adults aged twenty to twentyfour. In Italy, in 2014 there injuries within the Penal Code and the new hypotheses of mandatory were 177.031 road accidents resulting in injuries, which and facultative arrest in flagrante delicto. brought about 3.381 fatalities and 251.147 people injured. This paper aims at comparing the rules by which the United King- Compared to 2013, the number of accidents decreased by dom, France, Spain, Germany and Italy protect people’s lives and safety 2,5%; the amount of injured by 2,7% whereas the number of vehicular traffic in order to highlight strengths and weaknesses with of casualties dropped only minimally: -0,6% (1). Instead, in a view to future reforms. Europe according to the 2009 WHO “European status report A survey on the European legislature highlights that, while other on road safety. Towards safer roads and healthier transport”, countries tend to criminally sanction several dangerous driving con- every year in Europe about 120.000 people die as a result of ducts, Italy has preferred, on the one hand, to punish only with admi- road accidents, while 2.4 million sustain injuries (2). nistrative sanctions some violations related to reckless driving (with Even the European Union, on the basis of not encoura- the exception of driving under the influence of alcohol and drugs) and, ging statistics on vehicular accidents (1) since a long time on the other, to provide for particularly harsh prison sentences in the has been calling for a law to limit this type of criminal case of vehicular homicide. conduct. The authors criticize this approach and other aspects of the new For these reasons, on March 23, 2016 the Italian Parlia- law. Moreover, it seems that the legislator’s aim has not been achieved ment enacted Law n. 41 which introduced into the Italian because traffic accidents have not decreased. They also believe that legal regulations two new crimes, road homicide and road better results could be obtained by increasing controls on the roads and injuries, making changes to the Penal Code, the Criminal developing a policy of economical investments which improves road Procedure Code and the traffic laws (3). Before this reform, safety.Clin Ter 2017; 168(3):e214-219. doi: 10.7417/CT.2017.2009 such conducts were covered by the general rules applicable to all homicides and unintentional injuries (art. 589, para- Key words: road homicide and injuries, driving under the influence graphs 2 and 3, P.C., art. 590, paragraph 3, P.C.). However, of alcohol and drugs, Law, Italy, United Kingdom, France, Spain these crimes provide for sanctions that, in most cases, seem and Germany unable to adequately punish reckless drivers. In fact, penalty for manslaughter is determined by the court from a minimum of six months to a maximum of five years. Usually Introduction the judges, in assessing such offences, inflicted penalties considered by the public opinion not adequate to the crime. Road accidents are very common across Europe and By this law the legislator intended to sanction conducts that lead to a loud alarm in public opinion, especially if caused endanger people safety and emphasize the value of life and disregarding road rules and under the influence of alcohol physical integrity of injured people (4). or illegal drugs. In Italy for these accidents the civil society A few months after the law has been enacted, it is already and, for some years, both associations of road accident possible to make some considerations also by comparing it victims and professionals in the field have been expressing with the rules in force in other European countries.

Correspondence: Gianluca Montanari Vergallo, Department of Anatomical, Histological, Medicolegal and Orthopaedic Sciences, “Sapienza” University of Rome, Viale Regina Elena 336, Rome, Italy. E-mail: [email protected]

The “road homicide” and “road injury” offences Refusal to undergo the alcohol test (art. 589-bis and 590-bis p.c., introduced by art. 1, law no. 41/2016) If drivers found guilty in the accident refuse to undergo the test to verify whether they were under the influence of The “road homicide” offence is attributable to any alcohol or psychotropic substances (7), the prosecutor may person who by negligence causes the death of a person order the coercive sampling of their hair or oral mucosa, if violating the rules on road traffic. Penalties vary depending he considers that the delay in performing the analysis could on the presence of aggravating circumstances. Punishment jeopardize the investigation. The decision may be transmit- provides for imprisonment from two to seven years in the ted orally; however, the decree must be validated in writing cases of not aggravated road homicide; imprisonment from and sent within 48 hours to the Judge for the Preliminary eight to twelve years, if the driver was under the influence Investigations and confirmed in the next 48 hours (8). of alcohol or drugs. In particular in the first case, it should In urgent cases the judicial police officers may accom- be ascertained if the alcohol concentration per liter exceeded pany the driver to the nearest public health facility. In this 1.5 grams. If it proved to be higher than 0.8 and not higher case they must advise the driver’s attorney who has the than 1.5 grams per liter, imprisonment is sentenced to a right to attend the above mentioned test (art. 359 bis of the lesser extent (five to ten years). Criminal Procedure Code). “Road professionals” (truck drivers, taxi drivers, etc.) are punished with more severe penalties even if the alcohol concentration is higher than 0.8 grams per liter and not European legislation higher than 1.5 grams per liter. In such cases, the reform provides for the mandatory Some European countries have enacted specific laws to arrest inflagrante delicto. penalize road homicides. Furthermore, regardless of whether alcohol or illegal drugs In the UK, homicide committed while driving a vehicle have been taken, the law considers aggravating circumstances constitutes a separate offense from the common manslau- other imprudent conducts (speeding, crossing intersections ghter. For deaths resulting from road accidents the law with the red light, travelling on the wrong side of the road, (9,10) provides for two decreasing levels of punishment U-turn near or at the intersections, bends, humps, reckless depending on the severity of the driving conduct: 1) dan- overtaking in the presence of pedestrian crossings or a conti- gerous driving; 2) careless and inconsiderate driving. They nuous central line). These traffic offences entail the following are both expressed in very generic terms. The following sanctions: imprisonment for a period varying from five to ten are examples of careless and reckless driving a) aggressive years (art. 589-bis, paragraph V, P.C.) as well as additional driving (such as sudden lane changes or cutting into a line of sanctions such as a driving disqualification order and the ban vehicles); b) speeding; c) disregard of traffic lights and other to apply for a new up to a maximum of fifteen years (thirty road signs which, on an objective analysis, would appear years if the driver left the scene of the accident) (5). The same to be deliberate; d) driving when too tired to stay awake; approach, but with much lower penalties (from three months e) cell phone use “when the driver was unavoidably and to seven years imprisonment, as appropriate) was followed dangerously distracted by that use”. Conversely, a careless by the legislator when violating highway code rules causes and reckless driving consists, inter alia, in: a) overtaking serious injuries (i.e. inability to attend the ordinary activities on the inside or driving inappropriately close to another ve- for a period longer than forty days, or however a permanent hicle; b) inadvertent mistakes such as driving through a red or life-threatening damage) or very serious injuries. light or emerging from a side road into the path of another For all aggravated cases of serious and very serious road vehicle; c) short distractions such as tuning a car radio; d) injuries, the law provides for the optional arrest in flagrante flashing of lights to force other drivers in front to give way; delicto (art. 381, paragraph 2, of the Criminal Procedure e) driving that inconveniences other road users or causes Code, to which letter m-quinquies is added). However, dri- hazards such as unnecessarily remaining in an overtaking vers cannot be arrested if they stop, and if necessary, render lane (11). In the case of reckless driving, penalties charged assistance to the injured persons and are at disposal of the are: imprisonment up to fourteen years, at least two years of judicial police (art. 189, paragraph 8, of the Highway Code, mandatory disqualification from driving and then retesting. as amended by the subject law). The same penalties, applied in a different matter depending If death or injuries are not caused solely by the driver’s on the amount of alcohol or drugs taken, shall be charged negligent conduct or omission, the penalty is reduced up to for the crime of killing by careless driving when under the a half. Being generic, this rule could result in a reduction influence of alcohol or drugs. “Reckless or careless” driving of sanction not only in the case of the victim’s contributory is sentenced with imprisonment up to five years, mandatory negligence, but also when the accident was caused either by disqualification from driving for a minimum period of one the offender or weather conditions, such as torrential rains year and obligation to undergo retesting for license renewal that make roads very slippery. on the discretion of the judge (12). In France road accidents Both in the case of death or injury, the law provides falls within the manslaughter (art. 221 -6-1 P.C.), but the for an increase of penalty (up to three times the maximum penalty is more severe (13,14). Art. 221-6-1 P.C, as the penalty), when the road accident caused the death or injury minimum penalty, provides for five year imprisonment and of more persons. a pecuniary fine of 75,000 euro. Finally, penalty is anyhow increased if the accident was The law provides for up to seven year imprisonment caused by unlicensed or disqualified persons, or when their and a pecuniary fine of 100,000 euro for careless driving motor vehicle was uninsured (6). and disregard of the safety rules, 10 year imprisonment e216 G. Montanari Vergallo et al. and a fine of 150,000 euro for the following aggravating In Germany the negligent conducts described are pu- circumstances: driving under the influence of alcohol (with nished by applying the general rules of the Criminal Code a blood alcohol concentration equal or higher than the limit on manslaughter, which punishes the guilty persons with allowed by law), refusal to undergo the alcohol tests, driving imprisonment up to five years (Section 222) (17).However, without a license or with an expired license, speeding, failure the Criminal Code provides for certain conducts as crimes to render assistance. even if those do not involve anybody’s death or injury. In Finally, the code provides for a set of additional pe- particular, five year detention or a fine will be sentenced to nalties for those convicted of road homicide; (Art. 221-8): anyone who a) drives vehicles, although not in a condition driving license suspension for a minimum of five years to drive safely due to consumption of alcohol or drugs, or is and a minimum of ten years in the presence of one of the affected by physical or mental defects b) does not observe aggravating circumstances provided for by Art. 221-6-1; the right of way; c) overtakes or drives improperly in the driving license confiscation with the ban to apply for a new process of overtaking; d) improperly drives near pedestrian one for a minimum period of five years. In the presence of crossings; e) drives too fast in places with poor visibility, aggravating circumstances, the prohibition to renew the at road crossings or junctions or railroad crossings; f) fails license is extended to a minimum of ten years. In the event to keep to the right-hand side of the road in places with of repeated infringements, the court may also order, by re- poor visibility; g) turns, drives backwards or contrary to asoned decision, the definite disqualification from driving. the direction of traffic or attempts to do so on a highway or Law also requires the obligation to attend both a course on motorway; or fails to make vehicles which have stopped or the awareness on dangers of alcohol and drugs while driving broken down recognizable at a sufficient distance, although and, at own expense, a course on road safety. it is required for the safety of traffic. However, in all these In Spain, the law sanction as crimes some specific driving circumstances, drivers can only be punished if their conduct conducts: speeding, driving under the influence of alcohol endangers other people life and physical integrity or some- or drugs, reckless driving, homicidal-suicidal driving, etc. one’s property. If drivers “negligently cause the danger”, (art. 379 to 385 ) (15). In particular, Art. 380 and 381 regu- they will be sentenced to a maximum penalty of two year late and punish the reckless driving and homicidal-suicidal in prison (section 315 c). drivers who 1) driving a motor vehicle or a motorcycle, Even if the above mentioned dangers do not occur, just exceeding the speed limits and the blood alcohol level driving a vehicle when not in a condition to drive safely, reported under Art. 379 endanger people life or integrity, being unfit due to alcohol or drugs, is sentenced with impri- shall be punished with imprisonment from six months to sonment not exceeding one year, or a pecuniary penalty. The two years and with the driving disqualification for a period same penalty applies to those who commit this crime with ranging from one to six years; 2) drivers who consciously negligence (section 316). Conviction follows the driving disregarding other people life, endanger their life or integrity disqualification order (section 69) (18). are punished with imprisonment from two to five years, and with the disqualification from driving motor vehicles and motorcycles for a period ranging from six to ten years and a Discussion fine determined by the court. Conversely, if they drive with conscious disregard but do not endanger other people life As for the instruments used by the legislators of the above or safety, they are generally sentenced with imprisonment mentioned European countries to protect traffic life and from one to two years, and the prohibition to drive motor safety, this overview highlights a clear difference between vehicles and motorcycles from six to ten years. The judge Italy and the other countries considered (Table 1). also sets the amount of the fine. In case of death, the court In fact, jurisprudence of the above mentioned European has to take into account the most severely sentenced offense countries punishes as crimes several violations of the road and apply the penalty in its upper half. In any case, he has traffic rules. Conversely, in Italy, with the exception of to condemn the driver to pay damages (16). driving under the effect of alcohol or drugs (considered as

Table 1. Protection of life instruments applicable in case of road accidents Specific crimes, such Aggravating circumstances Specific crimes that General crime of Specific crimes that pu- as a) death and of the general offense of punish mere dan- manslaughter and nish death and injuries injuries manslaughter and specific gerous behaviors. specific crimes that b) dangerous beha- crimes that punish mere In case of death punish mere dange- viors dangerous behaviors penalty is higher rous behaviors U.K. Yes No No No Yes France No Yes No No Yes Spain No No Yes No No Germany No No No Yes No Italy No No No No Yes Italian law on the vehicular homicide: medical legal issues and comparative analysis e217 a crime under art. 186 of the Highway Code), other serious offense, the maximum penalty from twelve to eighteen ye- violations (such as very high speeding) are punished with ars (if besides death, the accident caused injuries to other administrative sanctions; they are considered aggravating people) seems excessive and incompatible with the evident circumstances (not autonomous crimes) only in the event less seriousness of the culpable offense compared with the of death or injury. However, having caused death or serious intentional one (19). injuries is often linked to fortuitous circumstances, such as More generally, the decision to lay down specific rules poor driving skills of other drivers or health disabilities of for such conducts has been criticized. For example, as people involved in the accident. Therefore, legislative sy- mentioned, penalty is reduced by up to half in cases where stems which apply penalties more on the basis of conduct the event is not directly related to the driver’s negligence negligence than on the actual damaging consequences are or omissions. However, this rule was introduced only for preferable. traffic accidents. Therefore, it does not apply, for example, This limit of the Italian law seems to be even more evi- to accidents at work and to physicians’ negligent behavior, dent in view of the fact that it punishes more severely than thus resulting in an unequal treatment. In fact, if the fatal other countries homicides subsequent to traffic accident accident is caused not only by the driver’s carelessness, (Table 2). People convicted for road homicide are given but also, for example, by atmospheric or environmental shorter sentences than those found guilty of other types of conditions that make the road particularly slippery, penalty homicide. should be reduced up to one half. Conversely, if death is In fact, in Italy serious violations of traffic rules (with caused both by health care personnel negligence and di- the exception of driving under the effect of alcohol or drugs) sease severity of the patient, a reduction of the penalty is are not criminally sanctioned and involve short confiscations absolutely not mandatory. Such inconsistency could have of the driving license if they do not involve anybody’s death been avoided through a more comprehensive reform that or injury. As a result, the same conduct can be punished includes negligent conducts in all fields and not just limited with eighteen year imprisonment and at least five-year to road accidents (20). disqualification from driving if the driver caused the death Even the list of aggravating circumstances seemed to of one person and injury to another, or only with a fine of be contradictory and incomplete. In fact, for example, the a few hundred euro and a short confiscation of the driving reform considers serious only the homicide caused by cros- license if the accident does not occur. This system seems sing the intersection with the red light and not also the one incompatible with the prevention and education objective caused by the driver who violates the obligation to give way that the legislator had set by Law no. 41/2016. or stop at the stop sign. In addition, the law considers serious Even apart from the comparison with the other European only the homicide caused by overtaking another vehicle at a legislative systems, law n. 41/2006 highlights some critical pedestrian crossing, not also turning over hitting pedestrians issues. A first objection concerns the proposed maximum in the crosswalk without overtaking (21). Legislators con- penalty of twelve years, eighteen years in the case of killing sidered this case more serious not only because it is more of one person and injuring of another in the same accident frequent than hitting in the crosswalk without overtaking, (art. 589-bis, last subsection, P.C., introduced by art. 1 Law but also because they felt that overtaking a car standing at a no. 41/2016). pedestrian crossing is a voluntary act that makes hitting very Under Italian law, penalties for intentional offenses are likely (22). However, even if there are no cars to overtake, the always much higher than the culpable ones because much choice not to slow down near the pedestrian crossing can be greater is the severity of the intentional offence. This is why a voluntary act. Consequently, the choice of protecting in a common manslaughter (that is, not consequent to traffic different way pedestrians’ life whether or not an overtaking accident) is punished with imprisonment from six months to occurred, might be questionable. five years (art. 589 P.C.), while intentional extremely serious The lack of clarity of the law has also created a conflict personal injuries, i.e those that cause permanent damages among the prosecuting authorities in various italian cities on the victim, are punished with imprisonment from six to about the possibility of subjecting the drivers to blood twelve years (Art. 583 P.C.). Since Italian jurisprudence has tests against their own will. According to the prosecutor of intended road homicide as a culpable, but not an intentional Trento, since the amendment only provides for the forcible

Table 2. Penalties subsequent to road homicide United Kingdom France Spain Germany Italy Detention up to 14 years up to 14 years from 6 months up to 5 years up to 18 years to 5 years Driving disqualifica- at least 2 years; at least for 5 years; from 1 to 10 If the act shows at least for five years in case of tion order) at least 1 year in at least for 10 years that the driver is homicide with no aggravating cases of careless years in cases of unfit to drive, for circumstances; at least for 10 or unconsidered aggravating circum- example if driving years if there are aggravating driving stances under the influen- circumstances; up to 30 years if ce of alcohol or the guilty driver did not render drugs assistance and left the scene of the accident e218 G. Montanari Vergallo et al. removal of hair or oral mucosa, not also blood, the latter regular working times and are not subjected to excessively cannot be imposed coercively. However, in order to prove long shifts. This would help make drivers definitely more alcohol/drugs effects on the driver’s performance, the jud- aware and more responsible. It would also be advisable that ges consider valid the medical certificate proving a high people get involved in education on road safety programs concentration of alcohol and/or the presence of drugs in and are aware of the dangers related to the use of drugs and the driver’s body fluids if such test is carried out not upon a alcohol while driving. Conversely, the Global Status Report specific request by the traffic police officers, but by hospital on Road Safety (33) of 2009 reported that in 2009 Italy for staff who takes sampling for clinical purposes in order to road safety had allocated 0.9 euro per capita/year against an treat injuries suffered by the driver in the road accident in average of 10.9 euro of the 21 European countries that had which he got involved (23). provided data on this issue, with peaks that reach 20 euro per However, according to the prosecutor of Genoa, the list year in Spain, 22 in Norway and 39 in France. Moreover, for of controls to be carried out is only an indication of those road safety 0.23% of GDP was allocated in Poland, 0.13% useful to prove alcohol or drugs intake. Therefore, blood in France, 0.12% in Estonia, 0.09 in Spain, 0.4% in the UK, sampling, being particularly reliable, cannot be excluded while in Italy only 0.004%. Conversely, Italy has chosen to (24). Clearly, in some cases the uncertainty on such an enact a law based on repression, and only in cases of death important aspect is likely to prevent the achievement of the or injury, instead of providing preventing measures. crime proof. An other aspect that is likely to prevent the achievement of the crime proof is the difficulty to search and identify Conclusions abuse substances in biological samples. Cocaine, opioids, cannabis, amphetamine are only some of the drugs that are The regulatory survey here reported highlights the key being used. Many new substances have entered the drug elements to be considered when enacting regulations inhe- market, but are not usually easily detected because are not rent criminal liability on road traffic. part of the screening pannels that are commonly used (25). First of all, providing for specific crimes to punish road An example are the so called designed drugs, such as NBO- homicide and injuries due to reckless driving is not in itself Mes, that have major effect on the ability to drive, but will necessary to safeguard traffic safety. Regulations on the not be found if not specifically searched in the biological matter in Germany, Spain and especially France show that samples (26). it is sufficient to seriously punish those who violate road Not even the main goal of the law, i.e hindering road traffic rules even if they do not cause damage. On the con- piracy, has been achieved. In fact, as it was easily predictable, trary, this kind of approach is more correct as it exposes to there has been a significant increase of accidents in which sanctions all the imprudent people, not only those who have drivers, instead of stopping to render assistance to injured the misfortune of running into an accident. persons, left the scene of the accident. Monitoring carried Secondly, it is mandatory to avoid applying flexible out after the entry into force of the new law has highlighted concepts, such as “the conscious disregard for the safety of that failure to render assistance in accidents which caused others”, as well as, very slight distinctions, i.e. “dangerous injuries or deaths were 556 in five months, against 484 in driving” and “careless and inconsiderate driving”. Such the same period of 2015: therefore, 72 more cases, with an legislative techniques increase the risk that the judges apply increase of 14.9% (27). It would have been more appropriate conflicting rulings, thus determining unequal sanctions. if the law had provided attenuating circumstances for those In addition, if it is considered appropriate that the law rendering assistance. In the months of April, May and June provides for specific crimes of road homicide and injuries, 2016, the Observatory of the Italian Association for Road the legislator’s intervention should be limited to both the Victims carried out a monitoring and verified that serious penalty entity and a list of the aggravating circumstances, episodes of road piracy were 294, compared with 245 in without providing for special rules in case of causal link or the same quarter of 2015, therefore 49 more accidents with other requirements of liability. Conversely, the aforementio- an increase of 20%. The injured persons were 366, while in ned Italian law has reduced the liability in case of concur- 2015 they were 313, with an increase of 16.9%. However, rence of circumstances, thereby determining an unjustified the number of deaths remained the same, i.e. 33 (28). difference in relation to cases of death and injury occurred These data show that law on road homicide alone cannot in fields other than road traffic. Finally, heavy imprisonment solve the problem of road safety. It is also mandatory to time sentences can appear superfluous and merely dema- develop adequate infrastructures and improve road safety gogic. The deterrent effect can easily be achieved through education, as other European countries have been doing massive pecuniary fines and long periods of confiscation of for decades (29,30). Therefore, Italian Government should the driving license, without applying penalties that are best allocate the necessary funds for ordinary and extraordinary suited for inveterate criminals than for people who have road maintenance. In fact, the bad condition of the roads is committed one, even if very serious and tragic, recklessness. actually one of the most frequent causes of accidents (31,32). It would be necessary to focus on the rehabilitation of people It is also absolutely necessary to have an adequate number who commit these serious crimes because in this field, much of traffic policemen who take night shifts in order to check more than in others, it is possible to make reckless drivers on people under the influence of alcohol, prevent the use of aware of the severity of the mistakes made, thus avoiding mobiles while driving, check that drivers wear seat belts and that they will repeat it. ensure that drivers of heavy vehicles and buses comply with Italian law on the vehicular homicide: medical legal issues and comparative analysis e219

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