In this post, I will explain how a DUI accident causing death can be charged as a murder.
In California, there are three felony driving under the influence (DUI) charges that involve the death of another person.
- Second-degree murder, also known as “Watson” murder,
- Gross vehicular manslaughter while intoxicated, and
- Negligent vehicular manslaughter while intoxicated.
Of these three felony charges, a DUI murder or “Watson murder” under penal code 187 is the most serious offense and carries with it the harshest penalties.
How Can Someone Be Charged With Murder If It Was An Accident?
The reason a defendant can be charged is because of something called the watson murder rule.
What Is The Watson Murder Rule?
The Watson murder rule refers to a situation where a person who has a prior DUI conviction and is under the influence of alcohol or drugs causes a car accident that kills someone.
Can You Be Charged With DUI Murder If You Do Not Have Any Prior DUI Convictions?
You need not have had a prior DUI conviction to be convicted of second-degree murder or DUI murder. But if you did, then you may have been given a particular admonition or advisement called a Watson admonition.
What Is The Watson Admonition?
The advisement is called a “Watson admonition” or warning that a subsequent DUI that results in the death of another person can result in a murder charge.
The Watson murder rule is used by prosecutors to enable them to charge a defendant charged with a DUI with second degree murder if their driving conduct led to a fatality3.
In lieu of a judge giving a particular admonition or warning directly to the defendant, the rule is satisfied if the defendant participated and completed a DUI class or education program approved by the court.
When is The Admonition Received By A Defendant?
The Watson admonition is sometimes read in open court to the defendant or the individual signs a form with the following language:
I understand that being under the influence of alcohol or drugs, or both, impairs my ability to safely operate a motor vehicle and is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If I continue to drive while under the influence of alcohol or drugs, or both, and as a result of my driving, someone is killed, I can be charged in California with murder.
Can You Be Charged With DUI Murder If You Did Not Receive A Watson Admonition?
However, they may charge him or her with one of two other manslaughter charges –
To be convicted of Watson murder or second-degree murder, no evidence of premeditation or specific intent is needed.
Instead, malice is implied from your conduct whereby you committed an unlawful act or where the circumstances of your conduct were such as to “show an abandoned and malignant heart”7.
The Three Elements that the Prosecution has to Prove in Order to Convict Someone of Watson Murder Include:
- You committed an intentional act that resulted in the death of another person.
- The natural consequences of your actions were such that they were dangerous to human life.
- You acted with conscious disregard for the consequences or of that danger.
How Does A Prosecutor Prove These Elements?
Regarding the first two elements, the prosecutor has to show that you consciously consumed enough alcohol to result in a blood alcohol concentration (BAC) level of 0.08% or higher, which is a presumption of intoxication8; or you otherwise were under the influence of alcohol and your driving conduct killed another person.
The prosecution will argue that a person killed in an accident that you caused by speeding, running a red light, or driving recklessly while you were under the influence is a natural consequence of driving intoxicated or under the influence of drugs.
What Else Must Be Proven For These Elements?
In addition, you must have had a pre-drinking intent to drive.
This can be demonstrated by a showing that you since you left home or office and drove to a bar or restaurant and drank copious amounts of alcohol and then began to drive home, that this was your intent before you left home. Of course, any time you drink and drive can be construed as possessing a pre-drinking intent to drive.
You Acted With Conscious Disregard
Regarding the third element, a prosecutor must introduce evidence that you were aware of the risks of driving under influence.
A prior DUI conviction is such evidence but the prosecutor should introduce evidence that a Watson admonition was given verbally in court or on a signed written form that explicitly shows you had knowledge of the risks.
Where is the Evidence That A Watson Admonition Was Given?
A court transcript can be obtained on the day of the sentencing for the prior DUI conviction that shows the judge giving the warning, or a court file copy of the plea form signed by the defendant that contains the necessary language.
The other option is for the prosecutor to provide records that the defendant completed DUI school along with the course materials that explicitly indicate that the defendant was warned about the dangers of drunk driving.
In most cases, a prosecutor will not charge a defendant under PC 187 unless he or she had:
- An extremely elevated BAC such as over 0.15%.
- Was driving extremely recklessly, such as driving 90 or 100 mph, racing, running red lights, or fleeing police.
- Has multiple DUI convictions.
If convicted of second degree murder, you face the following penalties:
- 15 years to life in state prison
- A fine of up to $10,000
- A strike on your criminal record9
What Is A Strike?
A strike means that your sentence will be doubled if you commit any other felony offense.
If you have two strikes and commit a felony offense that qualifies as a strike, then you will be sentenced to 25-years to life.
Great Bodily Injury Enhancement For The DUI
In the event that the fatal accident included a vehicle occupant who suffered great bodily injury, then your DUI murder sentence will be enhanced by a consecutive sentence of 3 to 6-years in state prison10.
If you would like to learn more about great bodily injury watch this video.
What if The Injuries Were Not Serious?
Should there be a victim who did not suffer great bodily injury but any injury, then your sentence is enhanced by a consecutive sentence of one year for each subsequent victim for up to 3-years11.
This means that a 15-years to life sentence will be served by an additional 3 to 6-years and, if applicable, another 1 to 3-years.
What Is Considered Great Bodily Injury?
Great bodily injury must be proved by the prosecutor. It is generally defined as having sustained a significant or substantial injury12.
This can include:
- A broken limb,
- Internal injuries, or
- Any injury resulting in a permanent disability so long as it is not a moderate injury.
However, there is no requirement that the victim has sought and received medical treatment to qualify as a great bodily injury nor this automatically mean that great bodily injury was suffered merely because medical treatment was administered.
Vehicular Manslaughter While Intoxicated
If charged as a vehicular manslaughter than the penalties will include the following:
- PC 191.5 (a)–Gross Vehicular Manslaughter While Intoxicated: 4, 6 or 10 years in state prison
- PC 191.5(b) -Vehicular Manslaughter While Intoxicated:
- If charged as a misdemeanor, up to one year in jail, a fine up to $1000 and restitution to the victim’s family.
- If charged as a felony, then up to 4-years in state prison, a fine of $10,000 and restitution to the victim’s family
If you would like to learn more about vehicular manslaughter while intoxicated watch this video.
Also, the enhancements for surviving victims who suffered great bodily injury or a simple injury are included if convicted of either offense.
What is The Difference Between a DUI Murder & Vehicular Manslaughter?
With a second-degree murder charge, the prosecution has to show that you had implied malice or a conscious disregard for the life of another human being.
For a manslaughter charge, the prosecution merely has to show negligence in your decisions. Manslaughter is a more common charge in DUI cases because it is easier to prove all of the required elements than second-degree murder.
Mounting a defense to DUI murder involves challenging the DUI arrest and the procedures involved in obtaining evidence of your intoxication as in a misdemeanor DUI charge.
Your defense lawyer can also attack the credibility of any blood or breath test that was taken and the integrity or reliability of the test results. If you were asked to submit to breath testing, the officer should follow the procedures outlined in Title 17 of the California Code of Regulations.
For example, you must have been observed for 15 minutes prior to testing for evidence of burping, vomiting, or acid reflux that can produce mouth alcohol that can skew the breath test results. Mouth alcohol can also be easily trapped in a defendant who wears dentures.
Title 17 also requires that the breathalyzer to be properly maintained and serviced. Although your BAC results will likely not be ruled inadmissible if the officer or breath testing technician failed to follow Title 17 procedures, your defense lawyer can certainly introduce expert evidence that any omissions or failure to follow procedures can result in a false high BAC reading and should not be relied upon as credible13.
Your attorney can argue that your BAC level was not at 0.08% so that no presumption of intoxication should apply. Similarly, a blood test sample can be tainted if the officer and technician fail to establish a chain of custody for the sample14.
Failure to Prove Reckless Conduct
Further, your driving conduct was not so extreme as to constitute recklessness. If you were driving 75 mph in a 65 mph zone where nearly every other driver was over the speed limit, then recklessness may not be demonstrated.
There may also have been other factors that may have caused the accident such as highway defects, poor lighting or signage, a median that collapsed that would have likely have prevented serious injury, or another motorist’s conduct was actually the cause of the fatal accident.
While this may save you from being convicted of second degree murder, you can still be charged and convicted of DUI. Since you had a prior conviction, you face mandatory jail sentences. If this is your 4th DUI within 10-years, then it is a felony.
Failure to Prove Implied Malice
The prosecutor must present evidence that you were aware of the risks of drunk driving, which can be demonstrated by proving that you had a prior DUI and were either given the Watson admonition in court by a judge or that you signed a form containing the admonition language.
If the prosecution cannot produce a court transcript showing that you were verbally given the admonition or that you signed a plea form with the requisite language, then he or she cannot prove the third element necessary to show implied malice.
Some convictions are years old or the sentences were hurriedly carried out so that the judge failed to give a defendant the warning or the plea form did not contain the Watson admonition.
The other option is proof of your attendance at DUI school. This condition is routinely given in any DUI sentence but you may not have been sentenced to a DUI class or you were unable to complete the course for some reason. In any event, the prosecutor must show that you were given warnings of the risks and dangers of DUI. If the course materials do not indicate clearly that such warnings were given, then you may not be convicted of DUI murder.
Of course, you still may face either gross vehicular manslaughter while intoxicated or vehicular manslaughter while intoxicated under PC 191.5 (b).
If you have been arrested and would like to learn more about how attorneys charge.
If you want to understand why its important to have an attorney represent you.
If you would like to discuss a pending case with a DUI attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.
Request A Free Consultation 818-351-9555
- People v. Watson, 30 Cal.3d 290 (1981). [↩]
- People v. Watson (1981) 30 Cal.3d 290 [↩]
- Penal Code § 187 [↩]
- Penal Code § 191.5(a). [↩]
- Penal Code § 191.5(b). [↩]
- Penal Code §188; People v. Dellinger (1989) 49 Cal.3d 1212, 1217-1222; People v. Blakeley (2000) 23 Cal.4th 82, 87 [↩]
- People v. Gonzales (1970) 4 Cal.App.3d 593, 602 [↩]
- People v. Milham (1984) 159 Cal.App.3d 487; People v. Randolph (1989) 213 Cal.App.3d Supp.1 [↩]
- Penal Code § 667.5 [↩]
- Penal Code § 12022.7 [↩]
- Penal Code § 23558 [↩]
- Penal Code § 12022.7(f); People v. Escobar (1992) 3 Cal.4th 740, 749-750 [↩]
- People v. Adams (1976) 59 Cal.App.3d 559, 567; People v. Williams (2002) 28 Cal.4th 408, 417 [↩]
- People v. Esayian (2003) 112 Cal.App.4th 1031, 1029 [↩]