In this post, I will explain California’s gross vehicular manslaughter while intoxicated law which is prosecuted under penal code 191.5(a).
But first, watch this video for an overview of the law.
Gross manslaughter while intoxicated under Penal Code 191.5(a) pc is the unlawful killing of a human being while driving a vehicle under the influence of alcohol and/or drugs.
What’s important to remember about this offense is that it is committed without malice aforethought (the mental state that is required for a murder conviction).
Rather, the killing occurred either during an unlawful yet merely grossly negligent act (not felonious) or during a lawful act that might produce death, in an unlawful manner and with gross negligence.
To prove that you are guilty of the offense of murder, the prosecutor has to prove the following facts or elements1:
- The defendant drove under the influence of an alcoholic beverage or a drug, or both, while having a blood alcohol level of 0.08 or higher;
- When the defendant is under the age of 21, drove while having a blood alcohol level of 0.05 or higher;
- While driving that vehicle under the influence of an alcoholic beverage and/or a drug, the defendant also committed a misdemeanor or infraction,or otherwise lawful act that might cause death2;
- The defendant committed the misdemeanor or infraction, or otherwise lawful act that might cause death with gross negligence3;
- The defendant’s grossly negligent conduct caused the death of another person4.
James can be charged with gross manslaughter because by driving while heavily intoxicated, barely able to perceive the objects approaching ahead on the road, and by speeding, he acted in a reckless way that created a high risk of death or great bodily injury for other drivers and/or pedestrians on the road ahead.
A reasonable person would have known that acting in that way would create such a risk.
There are several defenses that your attorney can assert on your behalf to fight a charge of gross manslaughter while intoxicated.
Your Behavior Did Not Rise To The Level Of Gross Negligence
If you can show that your conduct did not rise up to the level of gross negligence and was merely ordinary negligence, you could not be convicted of this offense but could be convicted under Penal Code 192(c)(3).
It was not Your Gross Negligence that led to the Death
Even if your conduct was grossly negligent but it was someone else’s gross negligence which caused the victim’s death, you cannot be convicted of this offense5.
Insufficient Evidence of Intoxication
If you believe that the police used unlawful procedures that lead to your DUI conviction, the procedures could be challenged to fight off a charge for gross manslaughter while intoxicated.
Also, if you were charged with a DUI based on your appearance and/or behavior alone, the charge can be challenged, as the police officer could have mistaken fatigue, sickness, or disorder for intoxication6.
There Was Imminent Peril
Imminent peril or a sudden emergency which requires you to drive unde the influence in circumstances where you would ordinarly not do so is a defense to vehicular manslaughter while intoxicated7.
Is Gross Vehicular Manslaughter While Intoxicated A Strike?
Because gross vehicular manslaughter while intoxicated is considered a serious felony offense, it is what is called a “strike” offense under California’s Three Strikes laws and can be used to significantly enhance the penalties for any future convictions.
For example, if you have been convicted of your “third strike offense,” you may be convicted to 25 years to life in California state prison.
The Aizman Law Firm has significant experience defending clients charged under California penal code 191.5(a) and in consultation with our clients we come up with the most effective defense strategy for your case.
Contact us for a free confidential consultation (818) 351-9555.
Request A Free Consultation 818-351-9555
- California Penal Code 191.1(a); CALCRIM No. 590. [↩]
- Elements of the Predicate Unlawful Act. People v. Ellis (1999) 69 Cal.App.4th 1334, 1339 [82 Cal.Rptr.2d 409] [↩]
- 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 driving a vehicle while under the influence of an alcoholic beverage and/or a drug and violating a traffic law is not enough 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; and any other relevant aspects of the defendant’s conduct. CALJUR No. 590 [↩]
- Gross Negligence—Overall Circumstances. People v. Bennett (1992) 54 Cal.3d 1032, 1039 [2 Cal.Rptr.2d 8, 819 P.2d 849] [↩]
- Causation. People v. Rodriguez (1960) 186 Cal.App.2d 433, 440 [8 Cal.Rptr. 863]. [↩]
- The Vehicle Code driving-under-the-inﬂuence 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].) “[T]he 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. [↩]
- Imminent Peril/Sudden Emergency Doctrine. People v. Boulware (1940) 41 Cal.App.2d 268, 269 [106 P.2d 436]. [↩]