Articles Posted in DUI Manslaughter

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In 2018, 19-year-old Davion Murphy, driving through residential Lancaster, California at a speed of 88 miles per hour, with a posted speed limit was 40 mph, ran a red light colliding with another vehicle. The collision caused the death of all three occupants in the vehicle Mr. Murphy’s vehicle hit. Mr. Murphy was arrested at the scene and upon investigation, the officers found marijuana in his vehicle. Further discovery revealed that Mr. Murphy had been smoking copious amounts of marijuana prior to the collision.  Mr. Murphy was charged with three counts of second degree murder. Mr. Murphy’s case went to jury trial where he was convicted on all three counts. Mr. Murphy appealed.

The California Court of Appeals, Second District recently affirmed the conviction in a published case, People v. Murphy (2022) 80 Cal. App. 5th 713.

Mr. Murphy argued on appeal that the prosecution failed to present sufficient evidence to support the murder charges because the prosecution failed to support an element of the charge, i.e., there was insufficient evidence that he acted with implied malice. Expressed malice, an element of first degree murder, is the deliberate intent to kill someone whereas implied malice, a necessary element of second degree murder is the killing of someone without the deliberate intent but a result of an act that has a high probability it will result in the death of another, an act with “wanton disregard for human life.” The act must be deliberately committed with the knowledge that it is a danger to human life and with a conscious disregard of that danger. (This distinguishes implied malice from gross negligence. For example, sober but excessive speeding that causes the death of another.)

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Run a search of the Orange County Register articles this summer on DUIs and you will learn that a woman suspected of DUI drove her car into Newport Bay, you will read about DUI crashes, some involving injury, and you will also read about DUI drivers who caused the death of innocent people.

A Santa Ana driver suspected of DUI ran a red light, hit another vehicle, and then fled the scene. The driver of the other vehicle died. The Santa Ana driver was arrested shortly after fleeing the scene.

A bicyclist was fatally struck by a DUI driver in Huntington Beach.

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Mr. Tev, while intoxicated, was driving his vehicle on the wrong side of the road at a high rate of speed. He crashed head-on into a car traveling on the road, killing the driver of that vehicle. Mr. Tev was charged with second-degree murder among other offenses. Mr. Tev had no intention to kill another person when he drove his car, so why was he charged with murder and not just vehicular manslaughter?

The offense of vehicular manslaughter (Penal Code section 192(c)) generally requires some kind of negligence or causing the death of another by driving and committing a misdemeanor or infraction. Examples of this could include texting while driving and hitting a pedestrian that dies of the injuries (negligence) or speeding and causing an accident that results in death (committing a misdemeanor). There is a separate offense if the driver is under the influence: Gross Vehicular Manslaughter While Intoxicated (Penal Code section 191.5). Under this offense, if a driver is intoxicated and is driving in a grossly negligent way that results in another person’s death. Gross negligence could be committing an act that is a misdemeanor or infraction (for example, speeding) or a lawful act that could cause the death of another (for example, going the speed limit but under dangerous road conditions is a lawful act but could pose a heightened danger).

Manslaughter under Penal Code sections 192(c) and 191.5 does not include the element of “malice.” And here is where Mr. Tev’s second-degree murder charge comes in. The theory upon which he was prosecuted was that there was evidence that Mr. Tev, who was driving with a blood alcohol content (BAC) of more than twice the legal limit, was subjectively aware that his driving under the influence was dangerous. Under this theory, Mr. Tev “deliberately acted with conscious disregard for human life” and therefore acted with “implied malice.” (CALCRIM NO.520.)

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Every parent’s nightmare is that their child will die before them. The tragedy is compounded when a child is killed by a drunk driver. But what if you are that DUI driver and you cause the death of your own child. Just this week, a Los Angeles mother was driving under the influence with her two infant twins and a toddler in her car when she caused an accident. One of the infants died and the other two suffered injuries. The mother came out with minor injuries. This driver was driving at a high rate of speed and crossed over into oncoming traffic. She was probably heavily under the influence, although her impairment levels have not been made public yet.  She faces manslaughter charges, possibly a second-degree murder charge.

Parents driving under the influence and causing their own child’s death is rare. But a quick search of the news archives reveals many instances where this has happened.  For example, just this month a Maryland woman was convicted of manslaughter after six passengers in her vehicle were killed due to her drunk driving.  Five of those killed were children, and two of the children were her own. She was sentenced to 20 years in prison.

The potentially tragic consequences of driving drunk are compounded when children are involved. In California, the vehicle and penal codes provide additional punishment for driving under the influence with a child in the vehicle. Anyone who is arrested for driving under the influence with a child 14 years of age or younger can also be charged with a DUI sentencing enhancement (Vehicle Code section 23572). Or the driver can be charged with child endangerment (Penal Code section 273(a)) if the child is under the age of eighteen. It is up to the prosecutor to determine the charge. A driver charged under both code sections can only be convicted of one but can also be charged with the underlying DUI charge and neither of these charges will stand if the driver is not convicted of the underlying DUI.

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Here’s a story that could happen to anyone who makes the decision to drive drunk:

In 2012, Ryan pleaded guilty to driving under the influence. It was his first DUI. As part of his guilty plea, he was provided with a Watsonadvisement. The Watsonadvisement was introduced in California following a 1981 case, People v. Watson, in which the California Supreme Court found that an impaired driver can be charged with second degree murderif due to their impaired driver they cause the death of another person. Even though a driver has no intention to kill someone, intentionally driving under the influence, knowingthat this act could result in the death of another is enough to find the driver guilty of second degree murder. Essentially, what must be proved is that the driver engaged in an act (driving under the influence) that the driver knew could cause the death of another. Although it is common knowledge that driving under the influence can result in such dire consequences, typically the prosecutor won’t charge second degree murder if a first-time DUI offendercauses the death of another. But if the offender has been previously convicted of a DUI and has therefore received the Watsonadvisement, the offender is now legally put on notice that impaired driving can result in the death of another person.  TheWatsonadvisement usually states something like “it is extremely dangerous to human life to drive while under the influence of alcohol and if you [the driver] continue to drive while under the influence …and as a result of your driving, someone is killed, you could be charged with murder.” That is the advisement Ryan received.

Six years later, Ryan was on a family camping trip. As they sat around the campfire, Ryan joined the others drinking beer. Having no intention of driving, Ryan ended up quite drunk. But as sometimes happens when family and too much alcohol get together, a family dispute arose. Ryan, whose judgment was clouded by his alcohol consumption and who was prone to get angry when under the influence, felt insulted by comments made by his brother-in-law and got into an argument with several family members. In a huff, he got into his truck and drove away. You know the rest of the story.

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In previous blog posts I discussed driving under the influence of marijuana (cannabis) and the difficulties provingthat a driver was under the influence at the time he or she was driving. The active ingredient in cannabis, THC, stays in a person’s system long after the effect wears offmaking it difficult to prove that a driver was under the influence at the time of driving. And, unlike alcohol, a driver under the influence of marijuana does not always display the obvious symptoms.  Despite these difficulties in proving the offense, drivers are being charged and convicted of driving under the influence of cannabis and in recent years, there have been increasing numbers of vehicular manslaughter while under the influence of marijuana convictions (Penal Code 191.5(a).)

Recently a 24-year-old man was charged in Kern County jury of vehicular manslaughter with gross negligence after swerving his car and hitting a teacher who was seven months pregnant, killing both the woman and her unborn child. (The manslaughter charge only attached to the woman due to a “loophole” in California law which may prosecute the murder of a fetus but does not define a fetus as a victim under the manslaughter laws.) The prosecutor alleged that the driver was under the influence of marijuana at the time of the crash. Under California law, if a driver kills another person while driving under the influence, he or she may be charged with grossly negligent manslaughter.  The jury found the young man guilty but convicted him on a lesser charge of negligent vehicular manslaughter rather than with gross negligence.

In San Diego County, a 27-year-old man made a U-turn on the freeway going the wrong way and crashed head on into a motorcyclist, also 27 years old. The crash killed the motorcyclist. It was alleged that the driver was high on marijuana at the time of the crash. The driver was never given a field sobriety tests but laboratory tests were conducted on the driver at the hospital which showed “a higher level of marijuana than they normally see,” according the district attorney prosecuting the case. The driver was convicted by a jury of gross vehicular manslaughter and sentenced by the court to six years in prison. While the driver’s behavior (making a U-turn on a freeway going the wrong way for three miles) certainly suggests he was under the influence of something, apparently the only substance present in his system was the THC. It is hard to imagine that cannabis would cause such dangerous driving.After trial, the prosecutor stated that the toxicologist could not definitively say that the driver’s conduct was attributable to the influence of marijuana.

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According to the European Transport Safety Council, the European Union populous consumes more alcohol than any other region of the world. It is estimated that around 25% of all traffic fatalities in the EU are alcohol related.  This is actually lower than the estimated percentage of drunk driving related fatal accidents in North America, but the statistical difference may be explained by the fact that North America sees far more people driving longer distances than in Europe where public transportation abounds, where many people don’t even have a car, and if they do, their typical driving trips are generally cover far less distance than a driving trip on this continent.

Even so, drunk driving is an issue in Europe, just as it is here. And as on this side of the pond, attitudes towards drunk driving and stricter laws and enforcement have had an effect. Road deaths attributed to drunk driving have been on the decline in Europe, but that hasn’t save the thousands of lives that are lost each year in Europe after a drunk driving collision.

The European Transport Safety Council issued a report this year titled “Progress in Reducing Drink Driving in Europe.”  (Drink driving being what we call drunk, or drunken, driving in this country.) The report is interesting for what it tells us about reducing drunk driving country by country.

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A Foothill Ranch woman faces a murder charge under Penal Code section 187(a). It is alleged that on October 1, 2016, this woman, only 24 years old at the time, “with malice aforethought” killed another human being. Why am I writing about this on a DUI blog? Well, this young woman faces murder charges because she caused the death of another after her vehicle crashed into the truck of the deceased. It is alleged that she was intoxicated when the collision occurred.

When a person causes the death of another in an accident, it is usually charged as manslaughter if the fault of the accident was due to the driver’s negligence or if the driver was violating the law. When a driver is DUI and causes a fatal injury to another, the driver may be charged under Penal Code section 191.5 for vehicular manslaughter. This is a separate offense and by definition includes gross negligence.

But when a driver causes the death of another while under the influence of alcohol or drugs and has been previously convicted of a DUI, the driver may, and probably will, be charged with second-degree murder. A DUI murder charge is no different than any other second-degree murder charge and carries of punishment of 15 years to life imprisonment in state prison. The murder charge this woman faces is called a “Watson murder,” so named following a California Supreme Court decision in 1981 (People v. Watson). The Watson court held that when a person drives under the influence, the driver acts wantonly and in disregard for human life. This rises to the level of implied malice. Without getting too technical, California law provides that anyone convicted of a DUI be advised that driving under the influence is dangerous to human life and that if the driver kills someone while driving under the influence of drugs or alcohol, he or she can be charged with murder. This is called a “Watson Admonishment” and provides a basis for the prosecution to allege that the driver had the requisite mental state of implied malice.

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When a drunk driver kills someone, he or she is usually charged under the vehicular manslaughter laws. But under certain circumstances, the driver can be charged with 2nd degree murder. Known as a “Watson Murder” charge, this crime gets its name from a California Supreme Court case, People v. Watson (1981) 30 Cal. 3d 290. In that case, the Supreme Court held that a driver who causes the death of another while driving under the influence, knowingly and intentionally doing so with conscious disregard for the natural consequence that the conduct could cause the death of another person, acted with implied malice. Without getting too technical here, that means the driver knew that his or her conduct risked the possibility of causing the death of another person. The element of implied malice distinguishes the criminal act from vehicular manslaughter. A Watson second-degree murder charge does not require the actual intent to kill someone.

Historically, California prosecutors only charged a Watson murder if the driver already had at least one DUI. That is because when a person is convicted of a DUI, they are required to acknowledge a “Watson” admonishment. This admonishment advises the defendant of the potential fatal consequences of driving under the influence and warns the defendant if he or she kills a person while driving under the influence, the prosecutor may charge the driver with 2nd degree murder. Furthermore, when a person is convicted of DUI, they must attend DUI classes, which also warn of these dangers. The Watson admonishment and the DUI education provides the prosecutor with evidence that the driver charged with a Watson murder acted with implied malice as the driver knew his or her act could result in the death of another but chose to drive under the influence anyway, i.e., the driver acted with implied malice.

While it is still more common to see a Watson murder charge filed against a driver who has at least one prior DUI, the past few years have seen more California prosecutors willing to charge a Watson murder even though the driver had no prior DUI. A Watson murder charge does not require a prior DUI, it only requires that the prosecution prove you had the necessary mental state. This is easier for the prosecution to prove when you have already received a Watson admonishment but in particularly egregious cases, the prosecution will argue that the facts are enough to establish implied malice.

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I recently wrote about individuals who work in criminal justice—and who should know better—getting DUIs. Today I read a tragic news story today about an off-duty Los Angeles police officer causing a crash that killed three people; the officer is suspected of driving drunk.

The crash happened in Riverside around 10 p.m. this past Tuesday, September 27. The off-duty officer, Edgar Verduzco, a Santa Ana resident, was speeding down the carpool lane when he rear-ended the victim’s Nissan. The Nissan burst into flames causing the death of a couple and their teen-aged son, who were trapped in their car.

The officer was booked on suspicion of felony DUI and vehicular manslaughter. LAPD is investigating, while Officer Verduzco is being held in the Los Angeles Men’s Central Jail on $100,000 bail. His only injury is a broken nose.

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