Appeals Court, December 18, 2013

Leaving the Scene of an Accident after Causing Injury under G.L. c. 90, § 24(2) (a1/2) (1) (subsection 1) is a lesser included offense of Leaving the Scene of an Accident after Causing Death, G.L. c. 90, § 24(2) (a1/2) (2) (subsection 2).

The defendant was indicted for leaving the scene of an accident causing death in violation of G.L. c. 90, § 24(2) (a1/2) (2) (subsection 2) but convicted of leaving the scene of an accident causing personal injury in violation of G.L. c. 90, § 24(2) (a1/2) (1) (subsection 1) after trial.   The defendant appealed arguing that it was error for the judge to have instructed the jury on subsection 1 because it is not a lesser included offense of subsection 2 .  The Court disagreed.

“As we have previously held, the two subsections are "almost identical," except that subsection 2 "applies only if the defendant's operation causes a death rather than [merely] injury[, and] it adds the element that the defendant 'goes away to avoid prosecution or evade apprehension' after the collision." Commonwealth v. Henault, 54 Mass. App. Ct. 8, 11 n. 5 (2002). “

“Furthermore, to conclude that the "not resulting in ... death" language in subsection 1 is an element of the crime would lead to an absurd result. To hold as such, we would have to ascribe to the Legislature the intent to criminalize leaving the scene of an accident causing injury regardless of the purpose for leaving (pursuant to subsection 1), but to make it legal for someone to leave the scene of an accident causing death, if the purpose for leaving the scene was not to avoid apprehension or prosecution (in the case of a defendant charged under subsection 2, were no lesser included offense instruction permitted in the circumstances). Such a construction would be absurd and unreasonable. See Attorney Gen. v. School Comm. of Essex, 387 Mass. at 336.”

General Law c. 90, § 24(2) (a1/2) (2): 

"Whoever operates a motor vehicle upon any way or in any place to which the public has a right of access or upon any way or in any place to which members of the public shall have access as invitees or licensees and without stopping and making known his name, residence and the registration number of his motor vehicle, goes away to avoid prosecution or evade apprehension after knowingly colliding with or otherwise causing injury to any person shall, if the injuries result in the death of a person, be punished...."

General Law c. 90, § 24(2) (a1/2) (1): 

"Whoever operates a motor vehicle upon any way or in any place to which the public has right of access, or upon any way or in any place to which members of the public shall have access as invitees or licensees, and without stopping and making known his name, residence and the registration number of his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to any person not resulting in the death of any person, shall be punished...."