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.)

Implied malice is a vague concept and can be hard for the prosecutor to prove. As the Court of Appeals has explained it:  malice is implied “when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”  People v. Dellinger (1989) 49 Cal.3d 1212, 1215.) Another court put it more simply: “I know my conduct is dangerous to others, but I don’t care if someone is hurt or killed.'” People v. Olivas (1985) 172 Cal.App.3d 984, 987-988.) Implied malice does not require any intention to kill another person (unlike first-degree murder), only the intent to commit the dangerous act.

Under the Watson murder rule (Penal Code section 187), a person convicted of a DUI is informed that driving under the influence is an act that endangers life and therefore, should that person in the future cause a death while driving under the influence, it is assumed that the driver acted with implied malice. Does a person really need to be informed that DUI can be dangerous to human life? The Watson rule is something of a “get out of jail free” card for the first-time DUI offender who causes the death of another. However, a first-time DUI driver can be charged with second-degree murder, particularly when the prosecutor can show that the driver’s conduct was exceptionally dangerous and/or the driver was well-aware of the risks.

Prosecutors tend to overcharge, and DUI vehicular second-degree murder charges are often hard to prove. Why? Because the prosecutor must provide evidence that the driver acted “with conscious disregard for human life.”  That evidence cannot be the underlying DUI; there must be other clear and convincing evidence that the driver acted with such a state of mind. Since this is difficult to prove, DUI defense attorneys are often able to negotiate a reduction in the charge to manslaughter or a lesser crime.

Orange County DUI defense attorney William Weinberg offers a complimentary consultation on your DUI case. He will thoroughly review the evidence against you and offer various options and strategies in defense of the charges. You may contact him at his Irvine office at 949-474-8008 or email Mr. Weinberg at