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.)