By Robert L. Grimes, Esq.
Defending Vehicular Manslaughter Cases
In any traffic accident resulting in injuries or fatalities, the officers will take a breath or blood test of the driver whom they believe to be at fault. If the suspect is taken to a hospital, the officers travel to the hospital to interview him and obtain a blood sample. Defense attorneys should take a close look at the circumstances of the interview of the defendant driver, as well as the chemical testing process. This is almost always a blood draw. The attorney may find a basis for a motion to suppress the statement and/or the blood results. You evaluate whether the facts as set forth by the arresting officer are sufficient to provide probable cause of an arrest and taking of a blood sample, and in some cases you may find an independent witness who disagrees with the version of the arresting officer. In June of 2016, the U.S. Supreme Court decided the case of Birchfield v North Dakota, (2016) 136 S. Ct. 2160. The court expanded on its recent decision of Missouri v. McNeely, (2013) 569 U.S. 141, and ruled that the Fourth Amendment permits warrantless breath tests but not warrantless blood tests.
If the driver is in violation of California Vehicle Code Section 23152(a) (driving under the influence) or California Vehicle Code Section 23152(b) (driving with a blood alcohol level of .08 percent or above), the driver will be charged with a felony if he or she committed a traffic infraction or drove negligently in a way that caused an accident with an injury or death. If the accident is not the fault of the drunk driver, there is no felony. If the defendant is driving down the road with a blood alcohol level of higher than .08 percent and another driver runs a red light and runs into your client, the defendant is guilty only of misdemeanor DUI, even if the other driver was injured or killed. If the defendant is at fault in a fatal accident but is not DUI, it will usually be charged as a misdemeanor or the driver may be charged with no crime at all. Causing a fatal accident while committing an unlawful traffic violation is a violation of misdemeanor California Penal Code § 192.5(d). If gross negligence is involved (but no DUI), it is a felony under California Penal Code § 192.5(c), and it carries a penalty of two, four, or six years in state prison.
The penalties for for Vehicular Manslaughter cases in California, or DUI accidents with injuries to another person, will greatly increase if the defendant has a prior conviction for DUI.
California Statutes and Laws for Vehicular Manslaughter cases and serious DUI injury cases
Statutes we commonly see applied to fatal DUI cases and serious injury cases are:
California Penal Code § 191.5(c): Gross vehicular manslaughter while intoxicated. Penalty: four, six, or ten years in state prison, or probation.
California Penal Code § 191.5(d): Vehicular manslaughter while intoxicated, with a violation of a traffic infraction or simple negligence. Penalty: sixteen months, two, or four years in state prison, or probation.
California Vehicle Code § 23153(a) and (b): DUIs in violation of a traffic infraction causing injury. Penalty: sixteen months, two, or three years in state prison. If the injury is great bodily injury, there is a three-year enhancement for each victim with great bodily injury, and the offense is a strike.
Murder DUI Cases
The California Supreme Court has held that a person driving under the influence of alcohol, who drives unsafely, causing the death of another, can be convicted of second-degree murder. People v. Watson (1981) 30 Cal.3d 290. The reasoning in Watson and subsequent appellate court cases is that the implied malice element of second-degree murder (which carries a fifteen-year to life sentence) can be proven by a combination of facts in any given case. These include the level of alcohol, dangerous driving (such as speeding or running stoplights), and prior knowledge of the dangers of driving while under the influence of alcohol. In most Watson murder cases, the defendant has one or more convictions of misdemeanor DUI, but this is not a prerequisite (Watson had no priors).
There is a fine line between the gross negligence element of gross vehicular manslaughter and the implied malice element of second-degree murder. Malice contemplates a subjective awareness of a higher degree of risk than does gross negligence. Almost any fatal accident charged as DUI vehicular manslaughter with gross negligence could also be charged as a Watson murder case. Restraint by the district attorneys issuing these cases is the only reason Chief Justice Rose Bird was not correct in predicting, in her dissent in Watson, that the decision made it “a virtual certainty that any individual who knowingly drives to a social outing, takes a few drinks, and while driving home is involved in an accident in which a death occurs, may be charged with murder in the second degree.”
As a result, attorneys need to win these fatal DUI cases on the trial court level, with a plea bargain or jury verdict that does not include murder. In the twenty-seven years since Watson was decided, no Watson murder case has been reversed for insufficiency of evidence.
Defending Vehicular Manslaughter cases (as well as DUIs with serious injuries)
In some cases, we retain accident reconstruction experts to evaluate the findings of the prosecution’s experts. We have hired private investigators to re-interview witnesses or locate witnesses not interviewed by law enforcement. You will want to get your expert to the scene of the accident as soon as possible, so your expert can take photographs and observe any remaining physical evidence, such as skid marks and broken glass. In a DUI felony arrest the responding officers usually do a thorough job in photographing the scene and taking measurements. In some cases, you should arrange with the district attorney to have your expert go to evaluate the impounded vehicles. Some law enforcement experts are very good and some are not so good. Even when their expert is good, your expert may find something they have missed or misinterpreted.
By their very nature, vehicular manslaughter cases involve accidents, and in accident cases there are often issues regarding who was driving. In instances where this is up for debate, a solid strategy is to focus on this issue and investigate, establish, and clearly present all relevant facts about who was actually driving. Our firm handled one case involving four fatalities where the man and woman in the suspect vehicle were thrown from the vehicle. The California Highway Patrol concluded that the man was the driver, and he was a candidate for a Watson murder charge because he had a prior DUI. Evidence was found, including a video at a casino shortly before the accident, showing the woman getting into the driver’s seat while the man got into the passenger’s seat. This video was among the items of evidence that persuaded the DA to charge the woman, not the man, with four counts of second degree murder.
In another case, our client, who was DUI and speeding, ran into a car that was stopped on the freeway, and the driver of that car was also DUI and had run into the side of the beam of the freeway. He had spun to a stop in the fast lane sometime before the collision that took his life and that of his passenger. Under the vehicular manslaughter and felony DUI statutes, contributory negligence on the part of another driver generally is not a defense, unless it is the sole cause or superseding intervening cause of the accident. However, in our case, a human factors expert was able to show that under the lighting conditions existing at the time of the fatal collision, the victim vehicle would have been almost impossible to see even by a sober person driving the speed limit. In that case, the client was still negligent (he was going 100 mph) but the fault of the victims mitigated the offense and resulted in a lower sentence. Contributory negligence is not a defense in criminal cases. It sometimes isn’t even admissible; the case law is bad. In some cases there will be a superseding intervening cause, and that is a defense.
A human factors expert has expertise in how people receive, interpret, and respond to information they receive from their eyes and ears.
Felony Hit-and-Run Cases
Police usually assume a hit-and-run involves a fleeing DUI, although in truth they will also tell you that many of the drivers who flee an accident scene are undocumented aliens.
California Vehicle Code section 20001(a) provides that leaving the scene of an accident that involves injury, without providing the required information regarding identity and insurance coverage of the driver, is a felony, punishable by state prison or county jail.
If the hit and run occurs during a commission of a felony vehicular manslaughter with gross negligence, California Vehicle Code section 20001(c) provides that a mandatory five-year consecutive sentence be added to the sentence is imposed for the manslaughter case. For a conviction of PC 191.5(a), this means that the hit and run enhancement would cause the sentence range to be 9, 11, or 15 years in prison, instead of 4, 6, or 10 years.
When a client tells an attorney that he or she was involved in a hit-and-run, the client must be told not to talk to anyone at all about the matter, including friends and family. If the client was the driver, tell the client you will not allow them to lie or to incriminate him or herself. That leaves only one option: don’t talk. The attorney will call the hit-and-run detective and decline the inevitable pressure to have the client make a statement. If the officer is going to make an arrest, it is a good strategy to arrange with the district attorney and the court to surrender the client directly to the court, or, if that is not possible, directly to the officer. However, do so with the admonition to both the client and the officer that no interview of any kind will be allowed. Warn the client that any “spontaneous statement” of any kind will appear in a police report.
Hit-and-run cases are hard to prove, even if witnesses get a partial or even a complete license plate. Even when the suspect’s car is left at the scene, it is not sufficient to prove who was driving the car. Some clients will want to make up a story about the car being stolen, and of course, they can never be allowed to do so. The instructions to the client are simple: do not admit anything and do not lie. Generally, this means the client’s best approach is to keep his or her mouth shut.
The car is evidence, so the client cannot hide it, paint it, or change it in any way, as long as there is a pending investigation.
In these cases, the attorney will file an SR-1 form with the Department of Motor Vehicles on behalf of the client, giving the information on the registered owner and the insurance coverage, leaving the section about the driver blank. The attorney will give the insurance information of the registered owner to the officer.
Occasionally a client will tell you they left the scene because they didn’t know they hit another car (or a person) until much later. Whatever the client tells you, you are still not going to let them talk to the police. In some instances where your client is already a suspect, you may decide to get your client’s side of the story to the police, but you will do this yourself. If your client has not been identified as a suspect, you generally should not initiate contact with the police.
Coordinating Criminal Vehicular Manslaughter cases with the Parallel Civil Case
There are almost always civil claims and lawsuits involved in these cases as well. The lawyer defending the criminal case should contact the client’s insurance company right away. The auto liability policy will not pay for attorneys’ fees in the criminal case, but it will pay for the attorneys’ fees, as well as investigative and expert fees, in the civil case.
The client’s insurance company will want a tape-recorded interview with the client. The lawyer defending the criminal case should be present during the interview and should state on the record that the purpose of the interview is to provide the insurance company and its attorneys with information to defend its insured in any civil proceedings. Further, he or she should state that giving the interview does not waive any privileges, including Fifth and Sixth Amendment privileges or the work product privilege.
The insurance company should be encouraged to make a prompt settlement with the victims or heirs of victims in fatality cases. In any case where the client is convicted, these victims will be in court presenting their opinions to the sentencing judge. When the civil case is settled, the settlement and release of further claims should be drafted to include all damages that could be subject to a restitution order in the criminal case. A client who has already settled his or her civil case with a victim could still be subject to a criminal restitution order of hundreds of thousands of dollars. In some cases you can reduce the client’s exposure to criminal restitution by working with civil counsel or the client’s insurer on the details of the civil settlement. This complex area depends on many factors. In some cases, you will advise your client to hire civil counsel to assist you with drafting the release of liability. There is a good discussion of the law of criminal restitution in People v. Millard (2009) 175 Cal.App. 4th 7.
We have found that our clients’ liability carriers, including the adjustors and the law firms they hire to defend claims, have been cooperative in working together with criminal defense counsel.
Other Consequences in the Vehicular Manslaughter case
In addition to the possibility of state prison, the other consequences of these cases including lengthy suspension or revocation of the privilege to drive, fines, restitution orders, and professional licensing issues. Some countries will not give visas to foreigners with felony convictions. Canada may deny a tourist visa to someone convicted of even a misdemeanor DUI. (There is a process for requesting waiver of this disability, and dismissal under Penal Code 1203.4 may help in some cases. Of course, DUI cases are among the few cases where dismissal under PC 1203.4 will not necessarily be granted upon successful completion of probation.)
The current bail schedule for a felony DUI is $100,000. This may be raised or lowered, depending on the circumstances. With accidents involved multiple deaths and/or great bodily injury, bail is sometimes set at $200,000 to $400,000. In setting bail conditions involving death or bodily injury, the judge will often order that the defendant not drive. It is often better not to set the DMV hearing on the administrative license suspension proceeding, as you normally do with a misdemeanor DUI. The criteria for bail are flight risk and danger to the community. The DA usually argues that even if the defendant loses his driver’s license he is a danger to the community if released on bail because he may again drink and drive. Having the defendant get fitted with a SCRAM bracelet can help counter this argument.
In certain fatal collisions that meet specific criteria, the CHP will have an investigation done by its MAIT (multidisciplinary accident investigation team). These investigations are very thorough, and sometimes take months to complete. The results of the MAIT investigation will be important to the DA in deciding where on the range of vehicular manslaughter cases they think this case belongs, all the way up to gross vehicular manslaughter, or in extreme cases, second degree murder. In felony DUI cases the DA has to prove that the DUI defendant was negligent, and that negligence was a cause of the injury to another. In the vehicular manslaughter cases, the question of whether it was simple negligence, gross negligence, or conscious disregard of the risk to human life are very critical to how many years in prison the defendant is facing.
In People v. Doyle, the Court of Appeals for the Third DCA has confirmed the 29 year to life sentence of a defendant who was convicted of simple DUI, with no accident or injury. Doyle had a prior conviction for vehicular manslaughter (PC 191.5), and the court saw no problem in using that prior both to elevate the new simple DUI to a felony, and also to use it as one of two prior strikes, making this misdemeanor defendant a three striker.
There is strong enforcement of DUI laws in California. Law enforcement officers are vigilant for DUI drivers, and the many thousands of drivers arrested and convicted of DUI every year are ordered to pay fines, go to DUI education classes and MADD classes, and are subject to drivers license suspensions and restrictions. There is no doubt that this raises public awareness of the dangers of driving under the influence, and causes a reduction in deaths and serious injuries that result from Vehicular Manslaughter and felony DUI cases. However, there is some doubt that sending some people to prison for six or 10 years for vehicular manslaughter, or for life for second degree murder, does anything to reduce the number of people who drink and drive. If two drivers on the same night drive with the same blood alcohol level and same level of negligence, one may hit a tree, while the other hits a pedestrian who was standing in front of the tree. The first will pay a substantial amount of fines and court related costs and spend a lot of time going to classes. The second could go to prison for many years. Usually, these defendants are people who would never commit a robbery or an assault or any other crime.