PIERRE, S.D. (KELO) — The South Dakota Supreme Court has rejected the claim that a hit-and-run conviction requires that the crash needed to have been an accident.
Justice Patricia DeVaney wrote the unanimous opinion that the state’s high court publicly released Thursday.
Bol Kwai had appealed his convictions for hit-and-run and aggravated assault. They stemmed from an altercation on February 25, 2020, in Sioux Falls between Kwai and another driver, Brian Heesch. A jury found that Kwai beat Heesch with a metal pipe and left Heesch on the ground, then got back in his vehicle and drove backward over Heesch.
Heesch spent nearly a month in the hospital, where he underwent eight surgeries for his many injuries. Since the incident, Heesch has needed to use a wheelchair and suffers from memory and speech issues.
Justice DeVaney summarized the thrust of Kwai’s appeal regarding the hit-and-run conviction: “With respect to the latter, he asserted that the crime encompasses only accidental acts, and by presenting evidence that the driver of the vehicle involved in this incident intentionally ran over Brian (Heesch), the State failed to make a prima facie case that an accident occurred.”
The question that the Supreme Court decided in the case was whether hit-and-run applies to a deliberate act. Justice DeVaney said the Legislature didn’t define the word ‘accident’ in the state law that classifies a hit-and-run resulting in death or injury as a Class 6 felony. However, she pointed to various definitions of accident from legal dictionaries that included phrases such as an event “that could not be reasonably anticipated; any unwanted or harmful event occurring suddenly.”
Kwai’s attorney had cited a Hawaii case to support their argument. Justice DeVaney however cited decisions from a variety of other states that found the opposite.
She wrote: “With these purposes in mind, an interpretation of the word ‘accident’ to exclude intentional conduct on the part of the driver fails to comport with the penal nature of SDCL 32-34-5. In fact, there is nothing in the language of SDCL 32-34-5 or chapter 32-34 as a whole that suggests the Legislature intended the nature of the triggering vehicular incident—whether occurring by chance, negligence, criminal conduct, or intentional conduct—to be a relevant consideration for a conviction. On the contrary, as multiple other courts have similarly concluded, the conduct our hit and run statute seeks to punish is the failure to stop and comply with SDCL 32-34-3.”
The Supreme Court affirmed Circuit Judge Camela Theeler’s rejection of the argument that Kwai’s lawyer made at his 2021 jury trial after the prosecution had presented its case.