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Gross Vehicular Manslaughter While DUI
Gross vehicular manslaughter while intoxicated is the most serious DUI-related offense short of murder. The offense is charged in situations where a driver is DUI, is driving in a highly reckless manner, and the reckless driving causes the death of another person. The penalty for conviction is up to ten years of state prison (per person killed).
If the defendant has had a prior DUI or has a particular reason to know the dangers of drunk driving, the prosecutor may charge second degree murder as well.
Below is an adaptation from the Judicial Council of California's jury instruction on this offense. It defines what a jury must find in order to convict a person of gross vehicular manslaughter while intoxicated:
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant drove a vehicle while under the influence of alcohol and/or drugs (in effect, that he was DUI), or that he drove with an excessive Blood Alcohol Concentration (BAC);
2. While DUI or driving with an excessive BAC, the defendant also committed a misdemeanor or traffic infraction or otherwise lawful act that might cause death;
3. The defendant committed the misdemeanor or traffic infraction or otherwise lawful act that might cause death with gross negligence;
AND
4. The defendant's gross negligent conduct caused the death of another person.
Gross negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with gross negligence when:
1. He or she acts in a reckless way that creates a high risk of death or great bodily injury;
AND
2. A reasonable person would have known that acting in that way would create such a risk.
In other words, a person acts with gross negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.
The combination of DUI and violating a traffic law is not sufficient by itself to establish gross negligence. In evaluating whether the defendant acted with gross negligence, consider the level of the defendant's intoxication, if any; the way the defendant drove the vehicle, and any other relevant aspects of the defendant's conduct.
A person facing a sudden and unexpected emergency situation not caused by that person's own negligence is required only to use the same care and judgment that an ordinarily careful person would use in the same situation, even if it appears later that a different course of action would have been safer.
An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.
There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death.
LESSER INCLUDED OFFENSES
- Vehicular Manslaughter With Gross Negligence Without Intoxication. Penal
Code, § 192(c)(1);
Vehicular Manslaughter With Ordinary Negligence While Intoxicated. Penal Code, § 192(c)(3);
- Vehicular Manslaughter With Ordinary Negligence Without Intoxication. Penal Code, § 192(c)(2);
- Injury to Someone While Driving Under the Influence of Alcohol or Drugs (DUI). Vehicle Code, § 23153;
Gross vehicular manslaughter while intoxicated is not a lesser included offense of murder. (People v. Sanchez (2001) 24 Cal.4th 983, 992 [103 Cal.Rptr.2d 698, 16 P.3d 118].)
RELATED ISSUES
DUI Cannot Serve as Predicate Unlawful Act
The Vehicle Code DUI offense of the first element cannot do
double duty as the predicate unlawful act for the second element.
(People v. Soledad (1987) 190 Cal.App.3d 74, 81 [235 Cal.Rptr.
208].) "[The trial court erroneously omitted the ''unlawful
act'' element of vehicular manslaughter when instructing in
... [the elements] by referring to Vehicle Code section 23152
rather than another 'unlawful act' as required by the statute."
(Id. at p. 82.)
Predicate Act Need Not Be Inherently Dangerous
"[T]he offense which constitutes the 'unlawful act' need
not be an inherently dangerous misdemeanor or infraction. Rather,
to be an 'unlawful act' within the meaning of section 192(c)(1),
the offense must be dangerous under the circumstances of its
commission. An unlawful act committed with gross negligence
would necessarily be so." (People v. Wells (1996) 12 Cal.4th
979, 982 [50 Cal.Rptr.2d 699, 911 P.2d 1374].)
Lawful Act in an Unlawful Manner: Negligence
The statute uses the phrase "lawful act which might produce
death, in an unlawful manner." (Penal Code, § 191.5.) "[Committing
a lawful act in an unlawful manner simply means to commit a
lawful act with negligence, that is, without reasonable caution
and care." (People v. Thompson (2000) 79 Cal.App.4th 40,
53 [93 Cal.Rptr.2d 803].) Because the instruction lists the
negligence requirement as element 3, the phrase "in an unlawful
manner" is omitted from element 2 as repetitive.
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