Negligent Vehicular Manslaughter While Intoxicated

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Overview

Vehicular Manslaughter While Intoxicated is the unlawful killing of a human being:

  • Without malice aforethought,
  • In the driving of a vehicle,
  • Where the driving was in violation of Vehicle Code Sections 23140, 23152, or 23153

And

  • The killing was either the proximate result of the commission of an unlawful act not amounting to a felony, but
  • Without gross negligence

Or

  • The proximate result of the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.

Example:

A man is driving at night while intoxicated having forgotten to turn on his headlights.  He ends up running over a pedestrian whom he did not see because of his failure to have his headlights on.  The man’s failure to use reasonable care by turning on his headlights to prevent reasonably foreseeable harm to a pedestrian or to another driver amounts to ordinary negligence.  Therefore, he can be charged with negligent manslaughter while intoxicated.

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How Does The Prosecutor Prove The Charge

To prove that someone is guilty of the offense of negligent vehicular manslaughter, 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 death;
  • The defendant committed the misdemeanor or infraction, or otherwise lawful act that might cause death with ordinary negligence2;

AND

  • The defendant’s negligent conduct caused the death of another person3

Examples: 

  • Tom was driving intoxicated truck when Larry swerved in front of him and his car spun out of control, causing Tom’s car to collide with it.  Larry was killed from the injuries.  In this case, Tom was not the cause of Larry’s death; rather, Larry was the one who swerved in front of Tom, leaving Tom no choice but to run into him.  As such, Tom cannot be charged with this offense because it was not his negligence that caused Larry’s death.
  • Mary was driving drunk on the freeway within the speed limit.  When she briefly took her eyes off the road to pick up something from the passenger seat, she rear ended the driver in front of her causing the car to collide with the lane divider and killing the driver in the car.  Because Mary merely briefly took her eyes off the road, her behavior constitutes ordinary negligence.  Therefore she could be convicted of negligent manslaughter while intoxicated.

Gross Manslaughter While Intoxicated Vs. Negligent Manslaughter While Intoxicated:

The difference between this offense and the charged offense of gross vehicular manslaughter while intoxicated is the degree of negligence required.  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 someone acted with gross negligence, prosecutors will consider the level of intoxication, if any; the way a defendant drove; and any other relevant aspects of the defendant’s conduct.  ((CALJUR No. 590.))

Examples:  

  • Taking your eyes off the road while driving intoxicated to check in the glove compartment amounts to ordinary negligence;
  • Driving over 60 mph in a school zone while intoxicated amounts to gross negligence.

How Can You Fight Negligent Manslaughter While Intoxicated & DUI Charges?

There are several defenses that an attorney can assert to fight a charge of negligent manslaughter while intoxicated.  Here are the most common ones:

  • The death was the result of imminent peril/sudden emergency: 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.

Example: Kerry was driving while intoxicated and suddenly had to swerve to avoid a motorcyclist who was trying to come in and out of her lane to get ahead of the traffic.  As she swerved to the right, she ended up pulling up onto the curbside where she hit and killed a pedestrian who was waiting at the corner to cross the street.  Because Kerry faced the sudden emergency situation of having to try to avoid the motorcyclist – a situation not caused by her own negligence, the emergency situation will likely act as a viable defense to a charge of negligent manslaughter while intoxicated.

  • It was not your negligence that led to the death: Even if your conduct was negligent but it was someone else’s negligence that 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 negligent manslaughter while intoxicated.  Also, if you were wrongfully charged with a DUI based on your appearance and/or conduct, the charge can be challenged, as the police officer could have mistaken your fatigue, sickness, or disorder for intoxication.

Penalties, Punishment And Sentencing Guidelines

The sentencing for this offense depends on whether it was charged as a felony or a misdemeanor.

Misdemeanor – Up to a year in jail and a maximum $1,000 fine.

Felony – 16 months, 2 or 4 years in the California state prison.  An additional, consecutive 3 to 6-year sentence and up to $10,000 in fines can also be tacked on if any surviving victim(s) suffer great bodily injury under Penal Code 12022.7.

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Choosing An Attorney

The state of California has implemented tough drunk driving laws, and some DUI offenders may be charged with both DUI and vehicular manslughter while intoxicated if they have killed someone with their vehicle while intoxicated.  If you would like to speak to a DUI attorney confidentially please call our office at: (818) 351-9555 for a free consultation.

We have local offices in Los Angeles, Beverly Hills, Woodland Hills, Burbank, Torrance, San Bernardino, Sherman Oaks, Long Beach, Studio City, Santa Monica, Ventura, Riverside, Santa Clarita, Valencia and Orange County.

Diana Weiss Aizman

Diana Aizman
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(818) 351-9555
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Footnotes

  1. California Penal Code 191.5(b); CALCRIM No. 591. []
  2. “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/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 could do in the same situation.  Ordinary Negligence. Penal Code 7, subd. 2; Rest.2d Torts, 282 []
  3. 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. []