Criminal Recklessness is a crime that is charged often in Indiana. The idea behind criminalizing reckless behavior is that the public should be protected from careless actions that create a substantial risk of injury, even if no injury actually occurs. In other words, the crime of criminal recklessness is aimed at punishing risky behavior, and not just the results from that behavior.
Criminal Recklessness is defined by I.C. 35-42-2-2. The statute reads in part:
- A person that recklessly, knowingly, or intentionally performs an act that creates a substantial risk of bodily injury to another person commits criminal recklessness. Except as provided in subsection (b), criminal recklessness is a Class A misdemeanor.
- (1) The offense of criminal recklessness is a Level 6 felony if:
- If it is committed while armed with a deadly weapon; or
- The person committed aggressive driving that results in serious bodily injury to another person; or
(2) The offense of criminal recklessness is a Level 5 felony if:
- If it is committed by shooting a firearm into an occupied motor vehicle, an inhabited dwelling, or another building or place where people are likely to be present; or
- The person committed aggressive driving that results in death or catastrophic injury of another person.
As a lawyer that has been practicing criminal law for 17 years, the element of criminal recklessness that most often trips up prosecutors is the “substantial risk of injury” component. The Indiana Court of Appeals has held that a substantial risk of injury must have “substance or actual existence.” Elliot v. State, 560 N.E.2d 1266, 1267 (Ind. App. 1990). The aforementioned case illuminates this point perfectly. The facts of Elliot v. State are as follows:
On August 22, 1989, Earl Elliot was having a great summer day. At the time, Earl owned a used car lot on the outskirts of Greenfield, IN. After eating lunch and drinking several beers, Earl said something to the effect of “Yahoo lets party!” and walked to the edge of the lot. At the edge of the lot, Earl took out a pistol and fired five shots into the air. Elliot at 1266. Elliot’s lot was next to a field and some woodlands. When Elliot fired the shots, he did so at a 10 degree angle towards the woodlands. None of his employees were in his line of fire, and no one was in the woodlands.
Elliot was convicted of criminal recklessness at trial, but the Court of Appeals reversed the conviction. The Appeals Court took aim at the substantial risk of injury component of the criminal recklessness statute and reasoned that “while Elliot’s conduct was reckless at best and deplorable at worst, it did not create a substantial risk of bodily injury to another person because there were no people in or near his line of fire.” Elliot at 1267.
The Elliot case illustrates that behavior can be stupid, risky, and even reckless. But if that behavior does not create a substantial risk of bodily injury to someone, then that behavior is not criminal recklessness.
Are you or a loved one facing criminal recklessness charges in Indiana? Contact the experienced attorneys at Banks & Brower anytime at (317) 870-0019 or email us at [email protected].
