Yes, the death penalty. In a drunk driving case. In these United States. For murder…… No, not involuntary manslaughter. Not vehicular homicide. Murder. And first-degree murder. As in pointing a gun at someone and pulling the trigger. MADD has been so successful in their political pressure campaigns that they’ve actually gotten some courts and legislatures to create a new type of crime: DUI murder.
Wait a minute, you say. I thought you had to INTEND to kill a person before it’s murder. You have to "premeditate" and that kind of thing, right? Well, yes and no. Each state is a little different, of course, but most follow similar laws. And those laws generally break a homicide ("the killing of another human being") into different categories. The first is excusable homicide — where, because of self-defense or other justification, the death is not considered a crime. Next is "manslaughter" — basically, a killing that is not murder. There are usually two kinds of manslaughter: voluntary and involuntary. Voluntary manslaughter is sometimes called a killing in the "heat of passion"; you lacked the time or ability to reflect on the act. Involuntary manslaughter is an unintentional homicide: you didn’t mean to do it, but you caused a death by your negligence or recklessness.
When a drunk driver causes an accident in which someone is killed, he is usually going to be facing involuntary manslaughter charges. Some states use different terms, such as "vehicular manslaughter" or "vehicular homicide". Either way, the death was unintentional, but it was caused by the driver’s negligent or reckless conduct.
And then there’s murder. That’s what you see on TV and read about in the papers: someone plans to kill someone else and, in cold blood, takes his life. But just to complicate things, in most states there are two kinds of murder: first degree and second degree. Murder in the first degree usually requires meaningful premeditation: you thought about it, planned it, carried it out. Second degree murder only requires a mental state known as "malice". What is malice? Well, usually it means the intent to kill someone: you intended to kill that person, but it may have happened so quickly that you never really thought it out. Intent, but no premediation.
So where does DUI fit into all of this?
It seems pretty obvious that it belongs in the "involuntary manslaughter" category — an unintentional accident but with negligence/recklessness. However…. This idea of "malice" is pretty vague. Very vague. Actually, it can pretty much mean whatever you want. Perfect, really, for a group like MADD looking for new ways to "get tough " on drunk drivers.
A prosecutor in California came up with a bright idea a few years ago. He simply ignored the vehicular manslaughter statute and charged a drunk driver with second-degree murder. And, DUI being a pretty unpopular crime, actually managed to convict him. The defendant appealed, saying the prosecution can’t just invent new crimes: he has to charge the offense specified by the legislature. The California Supreme Court disagreed, saying that he could be charged and convicted of murder if he acted with "malice" — that is, if he "does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life".
Base antisocial motive? What’s that? The Court tried to clarify:
"One who willfully consumes alcoholic beverages to the point of intoxication, knowing that he must operate a motor vehicle, thereby combining sharply impaired physical and mental facilities with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others." People v. Watson, 30 Cal. 3d 290 (1981)
Well, the problem is that the Court was pretty much describing ANY drunk driver. Recognizing that this opened the gates a bit wide, the courts have tried to limit over-zealous prosecutors by requiring a more serious type of malice. They came up with "conscious indifference": A drunk driver can be charged with murder if his state of mind was, "I know my conduct is dangerous to others, but I don’t care if someone is hurt or killed." Still pretty vague. Doesn’t alcohol itself cause indifference? And how do you know what’s in someone’s head when he’s drunk? Well, it turns out that you can now prove malice if you can show that the defendant knew drinking and driving could be dangerous. Of course, everyone knows that, right?
So where does that leave us? Any DUI defendant who knows drunk driving is dangerous can be charged with murder?
Apparently so. In People v. Murray, 275 Cal.Rptr. 498 (1990), the appellate court upheld a DUI murder conviction where the prosecution proved he had attended a DUI education class and told someone he had learned a lot from it. This was enough to show that he was aware that drunk driving was dangerous and so he acted with "malice". And, thus, murder.
With this kind of legal reasoning, it’s only a matter of time before we’re looking at the death penalty in a drunk driving case, right? Well, on April 8, 1997, a jury in Winston-Salem, North Carolina, came back with a first degree murder conviction in a DUI case involving a traffic accident with two deaths. They recommended a sentence of life without the possibility of parole. The prosecutor had asked for the death penalty.