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.)
Known as a Watson murder, the California courts have long held that a second degree murder charge will be upheld when a driver who is under the influence kills another due to his or her intoxicated driving when that driver has previously been convicted of DUI and therefore warned that driving under the influence is dangerous to human life. The driver, it is presumed therefore, has been informed and has a conscious disregard of the danger driving under the influence poses to human life.
In Mr. Murphy’s case, he had not been previously convicted of DUI and therefore had not received what is called the “Watson advisement.” A previous DUI and Watson advisement is not a necessary “predicate act” to convict on second degree implied malice vehicular murder, but it is a factor that, in most cases, will support the charge and conviction.
Mr. Murphy argued that he did not have subjective awareness of the danger of driving under the influence of marijuana and thus did not act with implied malice. The court rejected his argument. The court noted that the evidence unequivocally established that Mr. Murphy was under the heavy influence of marijuana when he got in his car and that he was clearly impaired. He had the intent to drive impaired. His driving was “exceedingly reckless”; thus the court concluded that Mr. Murphy was subjectively aware of the dangers of his driving. Finally, Mr. Murphy had received warnings in the past about the dangers of driving under the influence of marijuana at a youth educational program, on his driver’s license application, and on the warning label on the marijuana container found in his car.
This case continues the widening application of Watson murder beyond those who had a prior DUI and received the Watson advisement but also to drivers with no priors. Other courts have found sufficient evidence for a conscious disregard (i.e., second degree murder) based on the admonition in the driver’s license application, attendance in a program where these dangers were discussed, and driver’s ed classes.
While this case makes vehicular DUI second degree murder easier to prosecute, the intricate elements needed to convict may still offer a defense, but it requires convincing evidence that the driver did not understand that driving under the influence could cause the death of another. For example, a person who is only mildly high or barely over the DUI blood alcohol content (BAC) limit of 0.08% might more easily make this argument than someone who acted as Mr. Murphy did.
Orange County DUI defense attorney William Weinberg is available for a complimentary consultation to discuss your DUI matter. He may be contacted at his Irvine office at 949-474-8008 or by email at firstname.lastname@example.org.