999 Fifth Avenue, Suite 350, San Rafael, CA 94901

Call Today for Your Free Consultation
Call Us 415-729-7300

DUI Murder in California

San Fransisco DUI murder defense law firm

Northern California Lawyer Defends Clients Charged with Second-Degree Murder Related to DUI

The most serious charge related to driving under the influence is that of second-degree murder, Penal Code §187, based on the implied malice theory. Murder is the killing of a human being or fetus with malice aforethought. There is express malice and implied malice, and proof of either one is sufficient to establish the state of mind necessary for a murder conviction. Express malice requires an intent to kill, whereas implied malice requires that:

1. You intentionally committed an act;

2. The natural consequences of the act were dangerous to human life;

3. At the time of the act, you knew the act was dangerous to human life; and

4. You deliberately acted with a conscious disregard for human or fetal life.

The California Supreme Court held in People v. Watson (1981) 30 Cal 3d 290, that under certain circumstances, vehicular homicides may be charged as second-degree murder under the implied malice theory. In attempting to distinguish and define the difference between acts that constitute implied malice from gross negligence, the Watson Court stated:

The requisite culpability for the vehicular manslaughter charged here is gross negligence which has been defined as the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. On the other hand, malice may be implied when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life. Though these definitions bear a general similarity, they are not identical. Implied malice contemplates a subjective awareness of a higher degree of risk than does gross negligence, and involves an element of wantonness, which is absent in gross negligence.

People v. Autry (1995) 37 Cal.App.4th 351, is very instructive for the purpose of evaluating whether there is sufficient evidence to establish the requisite mental state for implied malice. Autry cites several appellate cases and determines that most cases have relied on some, or all, of the following factors in evaluating the implied malice theory as it relates to DUI murder cases:

1. Blood alcohol greatly above the .08% legal limit;

2. A pre-drinking intent to drive;

3. Knowledge of the hazard of driving while intoxicated; and

4. Highly dangerous driving.

The reason that it is necessary to evaluate these factors is that there must be sufficient evidence not only that your conduct was highly dangerous, but that you had, or had reason to have, an actual subjective awareness of the danger of your conduct at the time of the accident. Hence, your blood alcohol level is highly relevant, along with a preexisting knowledge of the hazards of driving while intoxicated.

If you are convicted of Penal Code §187 (second-degree murder) you will face an indeterminate sentence of 15 years to life. P.C. §190 (a), or 25 years to life if the victim is a police officer killed in the performance of his or her duties and you knew or should have known the victim was a police officer. P.C. §190(b). Such knowledge might be evidenced by the presence of a marked police car or uniformed officer.


CALL PAUL BURGLIN NOW AT (415) 729-7300.

Back to Top