Vehicular manslaughter while intoxicated is defined by Penal Code section 191.5 as the unlawful killing of another person without malice aforethought when the defendant is committing a DUI (either blood alcohol level higher than .08% or “under the influence”) and the death of the victim was the proximate result of some unlawful act, that was not a felony, or the proximate result of a lawful act that might produce death, that was committed in an unlawful manner. If all of this was done with gross negligence, then Penal Code section 191.5(a) applies; if all of this was done without gross negligence, then Penal Code section 191.5(b) applies.

What do all of these things mean?

First, killing another person without malice aforethought means killing someone without intending to kill them. These statutes apply when a person didn’t intend to kill someone. If a defendant had intended to kill someone, then the defendant would have been charged with murder or attempted murder.

Second, the death of the victim was the proximate result of some unlawful act not amounting to a felony. This means that the defendant had to do have done something else wrong instead of just merely driving under the influence. For example, if a defendant was driving under the influence of alcohol but obeying all traffic rules and their car was struck from behind by another driver, and someone died as a result of that accident, then the defendant couldn’t be charged with this crime because they weren’t doing anything else illegal other than the underlying DUI. However, let’s say a defendant was speeding while driving under the influence and got into an accident where somebody died. Then the defendnat can found guilty of vehicular manslaughter while intoxicated because they committed some other conduct not amounting to a felony, i.e. speeding, and the speeding caused the accident which in turn caused the death of the victim. So if a defendant had been speeding or swerving or had committed some infraction that caused the accident, or committed some misdemeanor that caused the accident, such as reckless driving, then the defendant could be charged with vehicular manslaughter while intoxicated.

Third, gross negligence is defined as something that involves more than just carelessness. It’s conduct that is so reckless as to create a high risk of death or bodily injury. This is the difference between Penal Code section 191.5(a) and Penal Code section 191.5(b). For example, if a defendant’s blood alcohol level was just over the limit and the only infraction they committed was speeding at just over the speed limit, then it could be argued that the defendant’s conduct was merely negligent. On the other hand, if the defendant’s blood alcohol level was very high and the defendant committed multiple infractions, such as speeding and running a stop light and leaving the scene of an accident, then it could be argued that the defendant’s conduct was grossly negligent.

The difference in penalties is significant. Penal Code section 191.5(a) is a felony punishable by 4, 6 or 10 years state prison. And this is actual state prison — not prison that’s served in county jail under the Realignment Law. If a defendant has a prior conviction for this section, or a prior DUI, or has certain other prior convictions, then the maximum punishment for Penal Code section 191.5(a) is 15 years to life.

Penal Code section 191.5(b) is a wobbler; and if it’s charged as a felony, then it is punishable by 16 months, 2 years or 4 years in prison subject to the Realignment Law, which means the time is served in a county jail. If Penal Code section 191.5(b) is charged as a misdemeanor, then the maximum punishment is one year in the county jail.

What if a person commits another crime while driving, but that crime was not the cause of the victim’s death?

It depends. The other crime does not have to be the sole cause of the victim’s death, but it has to be a substantial factor. For example, a defendant under the influence of alcohol and is driving without his headlights. A second driver is speeding and hits the defendant. In the accident, somebody dies. Here, we have two causes of the accident — defendant’s lack of headlights and the other driver’s speeding. But since the defendant’s conduct was a major factor in the accident that lead to someone’s death, they can be charged with vehicular manslaughter while intoxicated, even if they were not the sole cause of the accident.

On the other hand, let’s say a defendant was driving under the influence of alcohol and driving with expired registration tags and some other driver causes an accident with the defendant where someone dies. The expired registration tags had nothing to do with the accident or the death of the victim. So, if that’s the only other law being violated, then there is vehicular manslaughter while intoxicated.

What does the prosecution need to show to prove these crimes?

In order to be proven guilty of gross vehicular manslaughter while intoxicated, in violation of Penal Code section 191.5(a), the prosecution must prove each of the following elements beyond a reasonable doubt:

• The defendant was committing a DUI — driving under the influence of alcohol and/or drugs OR driving with a blood alcohol level of .08% or higher (if the defendant is 21 or over) OR driving with a blood alcohol level of .05% or higher (if the defendant is under the age of 21)
• While committing a DUI, the defendant also committed some other misdemeanor or infraction or lawful act that might cause death
• The defendant committed the misdemeanor or infraction or lawful act that might cause death with gross negligence
• The defendant’s gross negligently conduct caused the death of another person

In order to be proven guilty of vehicular manslaughter while intoxicated, in violation of Penal Code section 191.5(b), the prosecution must prove each of the following elements beyond a reasonable doubt:

• The defendant was committing a DUI — driving under the influence of alcohol OR driving with a blood alcohol level of .08% or higher (if the defendant is 21 or over) OR driving with a blood alcohol level of .05% or higher (if the defendant is under 21)
• While committing a DUI, the defendant also committed some other misdemeanor or infraction or lawful act that might cause death
• The defendant committed the misdemeanor or infraction or lawful act that might cause death with ordinary negligence
• The defendant’s negligent conduct caused the death of another person.

Other parts of the jury instructions on these charges include:

Gross negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with gross negligence when:

• He or she acts in a reckless way that creates a high risk of death or great bodily injury; AND
• 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 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.

Ordinary negligence, on the other hand, is the failure to use reasonable care to prevent reasonably foreseeable harm to oneself or someone else. A person is negligent if he or 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 would do in the same situation.

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.

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.

There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death.

Exact Language of the Statute:

191.5. (a) Gross 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 Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.

(b) 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 Section 23140, 23152, or 23153 of the Vehicle Code, 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.

(c) (1) Except as provided in subdivision (d), gross vehicular manslaughter while intoxicated in violation of subdivision (a) is punishable by imprisonment in the state prison for 4, 6, or 10 years.

(2) Vehicular manslaughter while intoxicated in violation of subdivision (b) is punishable by imprisonment in a county jail for not more than one year or by imprisonmentpursuant to subdivision (h) of Section 1170 for 16 months or two or four years.

(d) A person convicted of violating subdivision (a) who has one or more prior convictions of this section or of paragraph (1) of subdivision (c) of Section 192, subdivision (a) or (b) of Section 192.5 of this code, or of violating Section 23152 punishable under Sections 23540, 23542, 23546, 23548, 23550, or 23552 of, or convicted of Section 23153 of, the Vehicle Code, shall be punished by imprisonment in the state prison for a term of 15 years to life. Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce the term imposed pursuant to this subdivision.

(e) This section shall not be construed as prohibiting or precluding a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice consistent with the holding of the California Supreme Court in People v. Watson, 30 Cal. 3d 290.

(f) This section shall not be construed as making any homicide in the driving of a vehicle or the operation of a vessel punishable which is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner.

(g) For the penalties in subdivision (d) to apply, the existence of any fact required under subdivision (d) shall be alleged in the information or indictment and either admitted by the defendant in open court or found to be true by the trier of fact.

The Right Vehicular Manslaughter Lawyer

Vehicular manslaughter case are so complicated that choosing the right criminal defense lawyer will be the most important decision someone can make when facing a vehicular manslaughter charge. Many people who face vehicular manslaughter charges are good people who made a mistake or exercised poor judgment. There are also some people who have been wrongfully accused of vehicular manslaughter while intoxicated, based on a misleading or insufficient evidence. You need an attorney who will listen to your side of the story carefully, who will evaluate the evidence thoroughly, who will negotiate with the judge and the District Attorney’s office skillfully, and who will fight in trial aggressively. And in vehicular manslaughter cases, you need an attorney that has experience in DUIs and homicide cases. You need the Law Offices of Fred Thiagarajah.

As a former Deputy District Attorney, Fred Thiagarajah, and his team have the negotiating skills and trial experience necessary to get the best results for their clients. Fred Thiagarajah has prosecuted vehicular manslaughter cases as a Deputy District Attorney. He and his team now use their specialized knowledge of vehicular manslaughter cases to get the best possible outcomes for their clients. With offices in Newport Beach, Long Beach, Murrieta, Rancho Cucamonga and Riverside, Fred Thiagarajah and his team have criminal defense experience in Orange, Los Angeles, San Bernardino and Riverside Counties.