How to Convict a Drunk Driver of Murder

Posted by Lawrence Taylor on 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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  • http://www.duiattorney.com arizonaduilawyer

    Do judges in California make defendants sign the “DUI in dangerous” statement only as part of a plea, or do they also have them sign it after conviction at trial?

    I can see the state being able to argue the nexus in a plea situation, but not after a trial. What benefit do defendants get by signing, if any. Are they punished if they refuse to sign it?

  • Herman Martinez

    Similarly, in Houston, Harris County, Texas they prosecute a DWI third offender that is involved in a fatal accident with felony murder. LOMAX v. STATE
    233 S.W.3d 302 (TX 2007). Thus, changing the punishment range from 2-10 years to 5-99 year or life.

  • koivisto

    This type of thinking could be applied to any accident. Scary thinking indeed.

  • BudWiser

    Great site, just stubbled upon it. I’m about as frustrated as I can possibly be with dealing with my DUI. Latest fiasco: Today did my drug and alcohol evaluation. 12 weeks of counseling was recommended based on my MAST test score which was 11 at the office I took it at. When I came home and took it online, answering the same as I did earlier, I got a 3. I guess that’s why when I asked for a photocopy of the test I took, I was told “No, we don’t want you to take it somewhere and show it to somebody”.

  • Warren Lawler

    Preosecuting a DUI manslaughter is one thing… the sentences here in Miami are far to light.