Gross Vehicular Manslaughter While Intoxicated “Explained”

Legal Definition of Gross Manslaughter While Intoxicated

example of multiple vehicle crash, vehicle code 191.5(a) pc

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.

How Does the Prosecutor Prove Gross Manslaughter While Intoxicated?

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;
  • 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 death;
  • The defendant committed the misdemeanor or infraction, or otherwise lawful act that might cause death with gross negligence2;


  • The defendant’s grossly negligent conduct caused the death of another person.


After drinking heavily at his work holiday party, James was driving home and speeding while heavily intoxicated and barely able to perceive the objects approaching ahead on the road.  James then rear ended Mary’s car at 90 mph while she was stopped at an intersection, causing her car to burst instantly into flames and resulting in Mary’s death.  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; and a reasonable person would have known that acting in that way would create such a risk.

Max was drinking a bottle of vodka behind the wheel and texting his girlfriend.  As he made a right turn legally, he collided with a man whose bicycle breaks did not work and he rolled onto the oncoming traffic.  The man was instantly crushed and died under the weight of Max’ SUV.  In this case, Max is likely not guilty of the offense because of two reasons. First, although drinking drunk and texting is arguably grossly negligent behavior, it was arguably not Max’ negligence that killed the bicyclist; rather, it was the defective bicycle breaks that caused the bicyclist to roll forward without control.

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Who Can Be Charged With Gross Manslaughter While Intoxicated?

Under Penal Code section 191.5(a) pc, only a driver that is under the influence of alcohol and/or drugs and whose conduct arises to gross negligence and not just ordinary negligence can be charged with the offense.

How Can You Fight a Charge of Gross Manslaughter While Intoxicated?

There are several defenses that your attorney can assert on your behalf to fight a charge of gross manslaughter while intoxicated.  Here are the most common ones:

  • Your behavior did not rise to 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.
  • 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 caused the victim’s death, you cannot be convicted of this offense.
  • 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 intoxication.

What Are the Penalties, Punishment and Sentencing Guidelines for Gross Manslaughter While Intoxicated?

This offense is a felony and as a result, a defendant can face 4, 6, or 10 years in the California state prison, or 15 years to life in prison if he/she has a prior conviction under Penal Code section 191.5 or two or more prior DUI convictions.

Three Strikes Offense

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.

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How We Can Help

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 


  1. California Penal Code 191.1(a); CALCRIM No. 590. []
  2. 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 []

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