Vehicular Manslaughter While DUI--Ordinary Negligence

If a driver is DUI and causes an accident that results in the death of another person, he will likely be charged with one of two versions of vehicular manslaughter.

If the driver was DUI and driving very recklessly, he may be charged with vehicular manslaughter with gross negligence. If the driving violated a traffic law but was not extremely reckless, he will more likely be charged with vehicular manslaughter with ordinary negligence.

The main difference is in the punishment. The punishment for vehicular manslaughter with gross negligence is up to 10 years state prison; with ordinary negligence, up to 4 years state prison. This is for each person killed.

To prove that the defendant is guilty of vehicular manslaughter with ordinary negligence while intoxicated, the prosecutor must prove the four elements of the crime:

1. The defendant drove a vehicle while under the influence of alcohol and/or drugs, or with a BAC above the legal limit (DUI);

2. While driving under the influence or with an excessive BAC, the defendant also committed a misdemeanor or an infraction or otherwise lawful act that might cause death;

3. The defendant did so with ordinary negligence;

AND

4. The defendant's negligent conduct caused the death of another person.

The difference between this offense and the charged offense of gross vehicular manslaughter while intoxicated is the degree of negligence required.

Ordinary negligence is the failure to use reasonable care to prevent reasonably foreseeable harm to oneself or someone else. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation.

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.

The People have the burden of proving beyond a reasonable doubt that the defendant committed vehicular manslaughter with ordinary negligence while intoxicated. If the People have not met this burden, you must find the defendant not guilty of that crime.

LESSER INCLUDED OFFENSES

• Vehicular Manslaughter With Ordinary Negligence Without Intoxication. Penal Code, § 192(c)(2);
• Injury to Someone While Driving Under the Influence of Alcohol or Drugs.