State v. Soto

YETKA, Justice

(dissenting).

This court has always kept pace with the medical sciences, particularly in the field of criminal law. We have allowed into evidence new types of blood tests, powder tests to determine whether an individual has recently fired a firearm, and alcohol testing devices of all kinds. 1 Therefore, in *631 the event of criminal vehicular operation, why shouldn’t we keep pace with modern definitions of when life begins?

Although Verkennes v. Corniea, 229 Minn. 365 , 38 N.W.2d 838 (1949), involved a civil action of wrongful death, I find it persuasive that, under Verkennes , a viable fetus is considered a human being according to Minnesota law. This court, in Verk-ennes, found that the law is presumed to keep pace with the sciences: “Medical science and skill and experience have demonstrated that at a period of gestation in advance of the period of parturition the foetus is capable of independent and separate life, and that, though within the body of the mother, it is not merely a part of her body, for her body may die in all of its parts and the child remain alive, and capable of maintaining life.” 2 Verkennes, 229 Minn. at 368 , 38 N.W.2d at 840 (quoting Allaire v. St. Luke’s Hospital, 184 Ill. 359, 370 , 56 N.E. 638 , 641 (1900)). Medical science certainly has progressed to the point of making the “born alive” rule obsolete. 3 In light of the Verkennes rule and of present scientific knowledge, to say this fetus was not a human being at 8½ months is rather hard to understand.

Minn.Stat. § 645.17(4) (1984) provides: “When a court of last resort has construed the language of a law, the legislature in subsequent laws on the same subject matter intends the same construction to be placed upon such language.” Verkennes was written in 1949 and, therefore, the legislature is presumed to have, taken cognizance of the principle this court established defining a “person” or “human being” as including a viable fetus when the legislature adopted the present vehicular homicide statutes. 4 Contrary to the majority opinion, therefore, there was adequate warning to the defendant that if he killed an unborn, but viable, child while driving intoxicated, he would be prosecuted for vehicular homicide.

Much is made by the majority of the fact that the Massachusetts case of Commonwealth v. Cass, 392 Mass. 799 , 467 N.E.2d 1324 (1984), should not be used as precedent because Massachusetts is a common law state whereas Minnesota is a code state. While this is true, Cass is, none *632 theless, noteworthy and useful since the Massachusetts court interpreted a vehicular homicide statute almost identical to ours. 5 This court still interprets the criminal code in light of the common law. Minn. Stat. § 645.08 (1984). As the Cass court found, the common law reasons for not recognizing the criminal death of a fetus in útero as a homicide were grounded in the medical and scientific limitations of the times. Cass, 467 N.E.2d at 1328 . This traditional reasoning no longer holds true:

We think that the better rule is that infliction of prenatal injuries resulting in the death of a viable fetus, before or after it is born, is homicide. If a person were to commit violence against a pregnant woman and destroy the fetus within her, we would not want the death of the fetus to go unpunished. We believe that our criminal law should extend its protection to viable fetuses.

Id. at 1329 (footnotes omitted).

The majority opinion appears even more difficult to understand since respondent concedes that, if this child had been born in the automobile before the accident or if the child had been born as a result of the accident itself and then subsequently died, there would be no question that the statute would apply. It appears to me that anyone who gets into an automobile in an intoxicated condition is aware of the possible consequences of his or her act and must be held accountable. Such a person could not know, if he were to hit another vehicle, whether he might kill a mother or an unborn child or both. It could well have been the situation here that the mother was killed and not the child and the statute would then, unquestionably, apply.

I see no possibility of prejudice to any allegedly intoxicated driver in applying the statute to the unborn, but viable, child as well as to the mother. I believe that the principle has long been established under Minnesota law that a viable fetus is considered a human being. To deny this principle and adhere to a “born alive” rule is to not keep pace with the modern definition of when life begins. Accordingly, I would reverse the district court and remand for prosecution.

. See, e.g., State ex rel. Ortloff v. Hanson, 277 N.W.2d 205 (Minn. 1979) (blood tests); State v. *631 Spencer, 298 Minn. 456 , 216 N.W.2d 131 (1974) (powder tests); State, City of St. Louis Park v. Quinn, 289 Minn. 184 , 182 N.W.2d 843 (1971) (breathalyzer tests).

. The court also cited Blackstone: "Life is the immediate gift of God, — a right inherent by nature in every individual; and it begins, in contemplation of law, as soon as an infant is able to stir in the mother’s womb.” Verkennes , 229 Minn, at 368, 38 N.W.2d at 840 (quoting 1 W. Blackstone, Commentaries *130).

. See Parness, Crimes Against the Unborn: Protecting and Respecting the Potentiality of Human Life, 22 HarvJ. on Legis. 97 (1985):

When the live birth requirement was first * established in homicide law, the uncomplicated birth of an existing fetus was viewed by scientists and medical doctors as a perilous feat. Thus, perhaps it was not inappropriate for the law to presume that a hostile act against a fetus was not the conclusive cause of that fetus’s eventual failure to survive birth. Today, however, a fetus that has reached twenty weeks of maturity enjoys a high chance of survival and subsequent live birth. Unfortunately, judicial decisions and legislative enactments have not adjusted the law to the technological developments that have significantly increased the probability of complete fetal development and live birth. Rather, the courts and the legislators have clung with dogmatic fervor to the live birth requirement for homicide statutes not expressly protective of the unborn. The result is a legal system that too often treats differently the actor whose culpable conduct terminates the existence of a nine month old fetus and the actor who causes the death of an infant which had existed independently of the mother for an instant, or for only a brief while.

Id. at 130-31.

.Recently, this court, in Nyflot v. Commissioner of Public Safety, 369 N.W.2d 512 (Minn.1985), held that, in a case where the legislature amended the advisory warning that must be given a suspected drunk driver, the legislature, presumably, intended to amend the law so as to no longer permit a suspected drunk driver the right to counsel before responding to a chemical test for alcohol content. Certainly, if we can read that legislative intent into denying a suspect the right to counsel, we can presume that the legislature was aware of the 36-year-old decision of this court which holds that a viable fetus is treated as a human being for all purposes under the law.

. The Massachusetts statute provided in pertinent part: "Whoever * * * operates a motor vehicle while under the influence of intoxicating liquor * * * or whoever operates a motor vehicle recklessly or negligently so that the lives • or safety of the public might be endangered and by any such operation causes the death of another person, shall be guilty of homicide by a motor vehicle.” Mass.Ann.Laws ch. 90, § 24G(b) (Michie/Law.Co-op.1985). As the Massachusetts court faced the issue of whether a viable fetus is a “person," so does this court face the identical issue of whether such a fetus is a “human being.”