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Unintentional Crimes - When An Accident Is No Longer An Accident

Posted by James A. Charnesky | Oct 06, 2012 | 0 Comments

In Arizona, individuals are often charged with serious felony related crimes in conjunction with a DUI or other driving behavior deemed to be dangerous. For example, a person may drive intoxicated and get into an accident.  Even though they had no intention of getting into an accident and damaging the property of another, or hurting another, they nonetheless can and often are held criminally liable. Under Arizona law, the State need not demonstrate any actual intent.

A real life example of this is the story below published in the Tucson Daily Star newspaper.  While it does not apparently involve drinking, dangerous driving behavior is alleged.

Drag-racing wreck in Tucson's Gates Pass kills woman, 18

In the news report linked above, individuals are alleged to have been drag racing and as a result, it is alleged an accident occurred.  Nobody intended any property to be damaged, or any lives to be lost. Criminal charges have been filed.

The idea that you can be charged for crimes when you never intended to commit the act, while common now, is still relatively new in terms of the history of English - American jurisprudence.

Historical Criminal Common Law

Under historical common criminal law, criminal violations mandated a mens rea, or guilty state of mind.  The idea being that "the act" does not make a person guilty unless the mind is also guilty.  The "guilty mind," in legal terms, is referred to as "mens rea" and it is the mental element of the offense that accompanies the actual act.

To understand how criminal common law applies mens rea, take the example of a person hitting a person by inadvertently bumping into them, and as a result, giving them a black eye.  This is considered an accident. That person may be held monetarily liable, but the accident would not be considered a crime.

On the other hand, if that person intentionally hit the person in the eye, the act would constitute a criminal offense. This is the idea of mens rea.  The act of hitting the person must be accompanied by the "guilty mind," or the intent to commit the act.

Modern Statutory Criminal Law

Today, in Arizona, and in most if not all states, common criminal law has largely been replaced by statutory law.  Under statutory criminal law, for some crimes, the mens rea has been removed completely.  Driving Under The Influence is an example of a modern strict liability crime.  In Arizona one need not intend to drive intoxicated to nonetheless be guilty of DUI.  No state of mind, or mens rea, is necessary.

Also under Arizona's modern criminal code,  a number of "less than full intent" mental states have been defined. It is now possible to commit a crime negligently and / or recklessly.  These "less than intentional" states of mind mean that some non-intentional acts which under common criminal law may have been considered nothing more than an accident now can be criminal.

When Is An Accident Not Just An Accident?

Most accidents are the result of negligence, however, most accidents are not criminal.  So, when is it that an accident stops being an accident and instead becomes a crime?  In determining whether criminal liability attaches the law looks to the degree of negligence involved in an accident. It is only when the level of negligence reaches the point where a person should clearly have recognized the danger or risk of their actions does the law criminalize their behavior.


Most accidents are simply accidents.  For example, the circumstance where a person driving momentarily takes his eyes off the road and rear ends another driver is a typical example of a person negligently causing damage to the property of another.  Normally, the person would be held monetarily liable for the damage, and would pay for the damage. The act is considered civil, not criminal.


If we change the facts slightly by making the cause of the driver's failure to control his vehicle alcohol intoxication instead of a momentary lack of attention caused by a pedestrian, or child in the car, then criminal liability may and probably would result.  In such a case, the argument is that driving intoxicated is inherently risky or dangerous and even if a person does not recognize the risk, the risk is so well known that they should have recognized it.

Arizona Criminal Negligence

Arizona statutes provides that the "risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation." Put in everyday language, the idea is that if a person gets into an accident, even though it was unintentional, the risk was so clear that any "normal" or "sane" person would not have done what they did.

Arizona Criminal Recklessness

In addition to criminal negligence, under Arizona law a person may commit a crime with criminal recklessness. Criminal recklessness is considered a higher or more culpable state of mind than criminal negligence.  Generally, punishment for crimes committed with criminal recklessness is more severe than crimes committed with criminal negligence.

Under Arizona law, if a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists, and because of that disregard, an accident or unintended result occurs, that person will be held criminally liable. The risk must be of such nature and degree that it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

In my next blog post I will discuss specific Arizona crimes that one can commit, either with no state of mind, with negligence, or with recklessness.

About the Author

James A. Charnesky

James Charnesky is a Tucson DUI Defense Lawyer. His practice has always been committed to criminal defense. He has NEVER prosecuted, and has ALWAYS fought for the rights of the accused.


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