Cruz was charged initially with only two felony counts of failure to stop at the scene of a crash and a parole violation in a 2016 robbery case. The Sun reported that prosecutors indicated that they were unlikely to charge Cruz with murder.
I was surprised not only by the report on the charges but the curious gap in Nevada laws from misdemeanors to felonies on vehicular homicides. There are a couple of misdemeanor offenses followed by a felony with high predicates.
The lightest charge would come under NRS 484B.657 for vehicular manslaughter where a motorist “proximately causes the death of another person through an act or omission that constitutes simple negligence.” However, this misdemeanor charge is not appropriate for reckless driving, as here.
The step up in the criminal code is reckless driving causing death under NRS 484B.653 where penalties can go as high as six months.
The next step up is vehicular homicide (NRS 484C.130) but this generally involves a fatal DUI following three prior DUI convictions. This is a category A felony that can come with a possible life sentence. However, again, the predicates seem quite demanding.
Notably, straight murder in the first degree under Section 200.030 includes “lying in wait” for a victim, which could be claimed when you are driving to hit unsuspecting drivers. That would be a stretch however and this does not seem like a murder in the first degree case. Then there is murder in the second degree that includes all other types of murders.
This would seem a case of criminal assault or battery if the jury believes that Cruz drove to facilitate the attacks. That could then be used in a novel felony murder theory. Indeed, in many states, both deaths can be charged against an accomplice.
However, in Nevada, felony murder is simply a subset of first degree murder and only encompasses crimes “in the perpetration or attempted perpetration of sexual assault, kidnapping, arson, robbery, burglary, invasion of the home, sexual abuse of a child, sexual molestation of a child under the age of 14 years, child abuse or abuse of an older person or vulnerable person pursuant to NRS 200.5099.”
That brings us back to criminal assault or battery. In Nevada, assault is defined as the deliberate attempt to use force that places someone in a reasonable fear of imminent bodily harm. That tracks the common law definition of civil assault. It is treated as a misdemeanor. However, battery under NRS 200.481 includes a felony for the deliberate touching of another person in an unlawful way that caused substantial bodily harm. It can result in a five-year sentence for seriously bodily injury without a deadly weapon. If you use a deadly weapon, it can result in up to 15 years.
The question is whether a car can be treated as a deadly weapon.
It seems unbelievable that Cruz did not know that his friend was trying to strike pedestrians given his hanging out the window and Cruz’s driving near pedestrians. If a jury believes that he had knowledge and was participating in the lethal game, he was an active participant in the battery. The speed of the van was the force that killed Weissman. Cruz was controlling that speed as well as the steering of the van.