Archive for October, 2008

How to Convict a Drunk Driver of Murder

Thursday, October 9th, 2008

In California as in most states, the crime prescribed by statute in the event of a death caused by drunk driving is manslaughter.  In recent years, however, MADD’s "War on Drunk Driving" has encouraged prosecutors to find creative ways of charging murder.  Let’s eavesdrop on a veteran prosecutor in California explaining the ropes to an ambitious  young prosecutor:


Q. I wish I could get this drunk driver for murder, not just vehicular manslaughter.
A. You’re the prosecutor: You can charge him with anything you want.

Q. But how would I prove the mental state for murder, malice?
A. As you know, malice usually means there’s an intent to kill. But the law says you can imply malice.

Q. OK, but imply it from what?
A. “It is implied when…the circumstances attending the killing show an abandoned and malignant heart”. [Calif. Penal Code sec. 188]

Q. Yeah, but what the heck is “an abandoned and malignant heart”?
A. Our Supreme Court says it’s when someone “does an act with a high probability that it will result in death and does it with a base antisocial motive and a wanton disregard for human life”. [People v. Washington, 62 Cal.2d 777 (1965)]

Q. I don’t know if that’s any easier to prove. “High probability” a DUI will result in death? Anyway, the guy was just drunk: How can I prove “base antisocial motive” and “wanton disregard for human life” from that?
A. Simple: Don’t prove it, just imply that, too — from the defendant’s knowing that DUI is dangerous. [People v. Watson, 30 Cal.3d 290 (Cal.1981)]

Q. You mean all I’ve got to do is prove he knew drunk driving is dangerous, and I’ve got malice?
A. Yep.  We call it a “Watson murder”.

Q. That’s a long way from “high probability it will result in death”.
A. Yeah, that sort of got swept under the rug.

Q. But how do I prove he knew it was dangerous?
A. Like everything else, imply he knew it. Show he’s got a prior DUI conviction [People v. McCarnes, 224 Cal.Rptr. 846 (Cal.App. 1986)] or he’s been to Alcoholics Anonymous [People v. Brogna, 248 Cal.Rptr. 761 (Cal.App.1988)].

Q. But what if the guy isn’t an alcoholic and has never been convicted before?
A. Just find someone who once told him drunk driving was dangerous.

Q. What if we can’t find someone who –
A. Has he ever attended a driver education class? They usually tell them that DUI is dangerous. [People v. Murray, 275 Cal.Rptr. 498 (Cal.App. 1990)].

Q. But doesn’t everybody know DUI is dangerous?
A. Of course.

Q. Then doesn’t everybody have malice if they drive under the influence?
A. Now you’re getting it.

Q. Well, if proving murder in a DUI case is that easy, why not go for the death penalty?
A. They already tried it in a North Carolina case, but the jury went for life without parole instead. We’re working on it…


Note: Judges in California now make anyone convicted of DUI sign a statement saying they understand that DUI is dangerous. This is done so that he can be prosecuted for murder if he is later involved in a DUI-related fatality accident, regardless of the facts. In other words, despite what the laws say, the crime becomes murder rather than manslaughter if he signed a piece of paper saying “DUI is dangerous”.

Another triumph of form over substance….

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The Disappearing Right to Jury Trial…in DUI Cases

Saturday, October 4th, 2008

Ok, the cop said I looked bad on the field sobriety tests, but I know I’m not guilty: I only had two drinks and I’ve got witnesses. No matter what the police say, I can tell my side of the story to my fellow citizens and let them decide. Right?

Well….Not necessarily.

This right to jury trial, handed down centuries ago from England’s Magna Carta, was considered so fundamental to the framers of our Constitution that they included it in the Bill of Rights’ Sixth Amendment.  It makes no exceptions to this sacred right to trial by a jury of peers.

So why do some states today deny a person accused of drunk driving a jury trial? Why, for example, does an American citizen arrested in New Jersey have to accept the decision of a politically-appointed judge? After all, the Sixth Amendment is pretty clear on the subject:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…”

How did the government get around this fundamental right? Well, once again they started whittling away by playing around with words. (As Humpty Dumpty said, “When I use a word, it means precisely what I want it to  mean”.)

It started some years ago when the federal courts decided that the framers of the Constitution didn’t really mean “in ALL criminal prosecutions”. So they changed one little word. They said what the framers really meant was that there was a right to jury trial in serious criminal prosecutions — not in “petty” ones. Duncan v. Louisiana, 391 U.S. 145 (1968).

So what is “serious”? Well, a couple of years later, the Supreme Court decided that there was no right to a jury trial if the maximum authorized prison sentence did not exceed six months. Amazingly, going to jail for one-half year was not enough to justify giving a citizen a right to trial by his peers. The Court added, however, that a defendant could have a right to jury trial “only if he can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a “serious” one”. Baldwin v. New York 399 U.S. 66 (1970).

Well, what about DUI cases? They usually involve maximum sentences of six months in jail — and a bunch of other stuff: fines, license supensions, DUI schools, ignition interlock devices, years of probation. And the possibility of even stiffer punishment for a repeat offense. Doesn’t that show that lawmakers think drunk driving is pretty serious?

Inevitably, a citizen accused of DUI and (inevitably) convicted by a judge in Nevada took the case up to the U.S. Supreme Court. With all the additional punishment over and above the six months in jail, his attorney argued, wasn’t it “serious” enough to have a right to a jury?

No, the Court held: “Considering the additional statutory penalties as well, we do not believe that the Nevada Legislature has clearly indicated that DUI is a “serious” offense.” Blanton v City of North Las Vegas 489 U.S. 538 (1989).

Hmmm…..Drunk driving seems “serious” enough to justify ever-harsher DUI laws because of the oft-mentioned “carnage on the highways” — but apparently not “serious” enough to give a citizen his constitutional right to a jury trial.

We’ve come a long way since those historical words “In all criminal prosecutions…”

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